CERTAIN IDENTIFIED INFORMATION MARKED WITH "[***]" HAS BEEN OMITTED FROM THIS DOCUMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL AMENDMENT NO. 10 TO FINANCING AGREEMENT
CERTAIN IDENTIFIED INFORMATION MARKED WITH "[***]" HAS BEEN OMITTED FROM THIS DOCUMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL
AMENDMENT NO. 10 TO FINANCING AGREEMENT
AMENDMENT NO. 10, dated as of January 31, 2023 (this "Amendment"), to the Financing Agreement, dated as of December 23, 2019 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the "Financing Agreement"), by and among Mondee Holdings, Inc., a Delaware corporation (the "Parent"), each subsidiary of the Parent listed as a "Borrower" on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a "Borrower" thereunder, each a "Borrower" and collectively, the "Borrowers"), each subsidiary of the Parent listed as a "Guarantor" on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a "Guarantor" thereunder or otherwise guaranties all or any part of the Obligations, each a "Guarantor" and collectively, the "Guarantors"), the lenders from time to time party thereto (each a "Lender" and collectively, the "Lenders"), TCW Asset Management Company LLC, a Delaware limited liability company ("TCW"), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent") and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the "Revolving Agent" and together with the Administrative Agent, each an "Agent" and collectively, the "Agents").
WHEREAS, the Loan Parties, the Agents and the Required Lenders wish to amend certain terms and conditions of the Financing Agreement, subject to the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All terms used herein that are defined in the Financing Agreement and not otherwise defined herein shall have the meanings assigned to them in the Financing Agreement (after giving effect to this Amendment).
2. Amendments.
(a) Amended Financing Agreement. The Financing Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages of the Financing Agreement attached as Annex A hereto.
3. Representations and Warranties. Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows on the Amendment No. 10 Effective Date (as defined below) after giving effect to this Amendment:
(a) Representations and Warranties; No Event of Default. The representations and warranties in Article VI of the Financing Agreement and in each other Loan Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification on and as of each such date)
on and as of the Amendment No. 10 Effective Date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date), and no Default or Event of Default has occurred and is continuing on and as of the Amendment No. 10 Effective Date, after giving effect to this Amendment, or would result from this Amendment becoming effective in accordance with its terms.
(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the state, province, territory or other jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings under the Financing Agreement, and to execute and deliver this Amendment and each other Loan Document to which it is a party, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(c) Authorization, Etc. The execution, delivery and performance by each Loan Party of this Amendment and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirement of Law or (C) any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except, in the case of this clause (iv), to the extent such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect.
(d) Enforceability of Loan Documents. This Amendment and the Financing Agreement, as amended hereby, is a legal, valid and binding obligation of each Loan Party party hereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by principles of equity.
(e) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance of this Amendment and the Financing Agreement, as amended hereby, by any Loan Party party hereto.
4. Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction in full, in a manner reasonably satisfactory to the Agents, of the following conditions precedent (the first date upon which all such conditions shall have been satisfied (or waived) being hereinafter referred to as the “Amendment No. 10 Effective Date”):
- 2 - |
(a) Payment of Fees, etc. The Borrowers shall have paid on or before the Amendment No. 10 Effective Date, all fees, costs and expenses due and payable to the Agents and the Lenders under the Loan Documents on or prior to the date hereof (including the reasonable costs and expenses incurred by the Agents in connection with the preparation, execution and delivery of this Amendment).
(b) Representations and Warranties; No Event of Default. The following statements shall be true and correct (after giving effect to this Amendment): (A) the representations and warranties contained in this Amendment, Article VI of the Financing Agreement and in each other Loan Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of the Amendment No. 10 Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date) and (B) no Default or Event of Default shall have occurred and be continuing on the Amendment No. 10 Effective Date or would result from this Amendment becoming effective in accordance with its terms.
(c) Delivery of the Loan Documents. The Agents shall have received on or before the Amendment No. 10 Effective Date the following, each in form and substance reasonably satisfactory to the Agents and, unless indicated otherwise, dated as of the Amendment No. 10 Effective Date:
(i) this Amendment, duly executed and delivered by the Loan Parties, the Agents and the Lenders;
(ii) a Joinder Agreement, executed by Mondee Brazil;
(iii) a Security Agreement Xxxxxxx executed by Mondee Brazil, together with (1) undated powers executed in blank and other proper instruments of transfer with respect thereto and (2) irrevocable proxies and registration pages with respect thereto as required by the Security Agreement;
(iv) a Pledge Amendment, duly executed by Xxxxxx with respect to the pledge of 100% of the Equity Interests of Mondee Brazil and 0.001% of the Equity Interests of Orinter;
(v) the Joinder to the Intercompany Subordination Agreement, duly executed by Mondee Brazil and Orinter;
(vi) the Orinter Acquisition Collateral Assignment, duly executed by Mondee Brazil in favor of the Administrative Agent;
(vii) a certificate of an Authorized Officer of the Administrative Borrower certifying that (A) the attached copies of the Orinter Acquisition Documents as in effect on the Amendment No. 10 Effective Date are true, complete and correct copies thereof and (B) such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;
- 3 - |
(viii) evidence satisfactory to the Administrative Agent of the filing of appropriate financing statements on Form UCC 1 in such office as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interests purported to be created by each Security Agreement;
(ix) a certificate of an Authorized Officer of Mondee Brazil and Mondee, certifying (A) as to copies of the Governing Documents of Mondee Brazil, together with all amendments thereto (including, without limitation, a true and complete copy of the certificate of formation of Mondee Brazil certified as of a recent date not more than 30 days prior to the Amendment No. 10 Effective Date by an appropriate official of the jurisdiction of organization of Mondee Brazil which shall set forth the same complete name of Mondee Brazil as is set forth herein and the organizational number of Mondee Brazil, if an organizational number is issued in such jurisdiction, (B) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the transactions contemplated by this Amendment and the other Loan Documents to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan Party of this Amendment, each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith and (C) the names and true signatures of the representatives of Mondee Brazil authorized to sign each Loan Document to which Mondee Brazil is or will be a party and the other documents to be executed and delivered by Mondee Brazil in connection herewith and therewith, together with evidence of the incumbency of such authorized officers;
(x) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each of Mondee Brazil certifying as of a recent date not more than 30 days prior to the Amendment No. 10 Effective Date as to the subsistence in good standing of such Loan Party in such jurisdictions, together with written confirmation (where available) on the Amendment No. 10 Effective Date from such official(s) as to such matters; and
(xi) a certificate of the Authorized Officer of each Loan Party certifying as to the matters set forth in Section 4(b).
(d) Consummation of Orinter Acquisition. Prior to or substantially concurrently with the Amendment No. 10 Effective Date, (i) Mondee Brazil shall have purchased pursuant to the Orinter Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived without the prior written consent of the Administrative Agent), and shall have become the owner, free and clear of all Liens other than Permitted Liens, of all of the Orinter Acquisition Assets and (ii) each of the parties to the Orinter Acquisition Documents shall have fully performed all of the obligations to be performed by it under the Orinter Acquisition Documents.
5. Conditions Subsequent to Effectiveness. The Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Amendment, including, without limitation, those conditions to the Amendment No. 10 Effective Date set forth herein, each Loan Party shall, and shall cause each of its Subsidiaries to, deliver to the Administrative Agent or comply with each of the following, within the time periods set forth below (it being understood that the failure by the Loan Parties to perform or cause to be performed any such
- 4 - |
condition subsequent shall constitute an immediate Event of Default (without giving effect to any grace periods set forth in the Financing Agreement)):
(a) By no later than February 10, 2023 (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence of the insurance coverage required by Section 7.01(h) and the terms of each Security Agreement and each Mortgage and such other insurance coverage with respect to the business and operations of Mondee Brazil as the Administrative Agent may reasonably request, in each case, where requested by the Administrative Agent, with such endorsements as to the named insureds or loss payees thereunder as the Administrative Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days' prior written notice to the Administrative Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Administrative Agent may request;
(b) Within 45 days of the Amendment No. 10 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received the Brazil Security Documents and all other resolutions, documents, certificates, instruments and/or legal opinions, in connection with the execution and delivery of the Brazil Security Documents, each in form and substance satisfactory to the Administrative Agent; and
(c) Within 10 days of the Amendment No. 10 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), an opinion of Xxxx Xxxxx LLP, counsel to Mondee Brazil, reasonably acceptable to the Administrative Agent, in each case, as to such matters as the Agents may reasonably request.
6. Continued Effectiveness of the Financing Agreement and Other Loan Documents. Each Loan Party hereby (a) acknowledges and consents to this Amendment, (b) confirms and agrees that the Financing Agreement and each other Loan Document (in each case, as amended or otherwise modified by this Amendment) to which it is a party is, and shall continue to be, other than as expressly set forth in this Amendment, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment No. 10 Effective Date, all references in any such Loan Document to the “Financing Agreement”, the “Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement shall mean the Financing Agreement as amended by this Amendment, and (c) confirms and agrees that to the extent that, any such Loan Document purports to assign or pledge to any Agent for the benefit of the Secured Parties (or any of them), or to grant to any Agent, for the benefit of the Secured Parties (or any of them), a security interest in or Lien on any Collateral as security for the Obligations of the Loan Parties from time to time existing in respect of the Financing Agreement and the other Loan Documents (in each case, as amended or otherwise modified by this Amendment), such pledge, assignment and/or grant of the security interest or Lien is, subject to the release thereof as expressly set forth in this Amendment, hereby ratified and confirmed in all respects. This Amendment does not and shall not affect any of the obligations of the Loan Parties, other than as expressly provided herein, including, without limitation, the Loan Parties' obligations to repay the Loans in accordance with the terms of Financing Agreement, or the obligations of the Loan Parties under any Loan Document to which they are a party, all of which obligations shall remain in full force and effect (in each case, as amended or otherwise modified by this Amendment). Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Agent or any Lender under the Financing Agreement or any other
- 5 - |
Loan Document, nor constitute a waiver of any provision of the Financing Agreement or any other Loan Document.
7. No Novation. Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Financing Agreement or instruments securing the same, which shall remain in full force and effect, except as modified hereby.
8. No Representations by Agent or Lenders. Each Loan Party hereby acknowledges that it has not relied on any representation, written or oral, express or implied, by any Agent or any Lender, other than those expressly contained herein, in entering into this Amendment.
9. Release. Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the "Releasors") does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the "Released Parties"), from any and all debts, claims, allegations, obligations, damages, costs, attorneys' fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment No. 10 Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agents or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.
10. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart of this Amendment.
- 6 - |
(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a "Loan Document" under the Financing Agreement.
(e) Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(f) This Amendment shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
[Remainder of page intentionally left blank.]
- 7 - |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof.
BORROWERS: | ||||||||
MONDEE, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
C&H TRAVEL AND TOURS INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
MONDEE CANADA INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
SKYLINK TRAVEL, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
SKYLINK TRAVEL, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
SKYLINK TRAVEL, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
SKYLINK TRAVEL, SFO INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
TRANS AM TRAVEL, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
HARI-WORLD TRAVEL GROUP, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx |
[Amendment No. 10 to Financing Agreement]
Title: CEO | ||||||||
EXPLORETRIP IP HOLDINGS, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
EXPLORETRIP, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
MONDEE ACQUISITION COMPANY INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
TRANSWORLD TRAVEL, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO |
[Amendment No. 10 to Financing Agreement]
LBF TRAVEL HOLDINGS, LLC | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
LBF TRAVEL, INC. (f/k/a LBF Acquisition Corporation, Inc.) | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
AVIA TRAVEL AND TOURS, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
COSMOPOLITAN TRAVEL SERVICE, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
COSMOPOLITAN TRAVEL SERVICES INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO | ||||||||
ROCKETRIP, INC. | ||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||
Title: CEO |
[Amendment No. 10 to Financing Agreement]
GUARANTORS: | ||||||||||||||
MONDEE HOLDINGS, INC. | ||||||||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||||||||
Title: CEO | ||||||||||||||
MONDEE HOLDINGS II, LLC | ||||||||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||||||||
Title: CEO | ||||||||||||||
MONDEE BRAZIL, LLC | ||||||||||||||
By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||||||||||
Name: Xxxxxx Xxxxxxxxxxx | ||||||||||||||
Title: CEO |
[Amendment No. 10 to Financing Agreement]
ADMINISTRATIVE AGENT: | ||||||||
TCW ASSET MANAGEMENT COMPANY LLC | ||||||||
By: | /s/ Xxxxxxx Xxxxxx | |||||||
Name: Xxxxxxx Xxxxxx | ||||||||
Title: Managing Director |
[Amendment No. 10 to Financing Agreement]
REVOLVING AGENT: | ||||||||
WINGSPIRE CAPITAL LLC | ||||||||
By: | /s/ Xxxxxxxxxxx Xxxxx | |||||||
Name: Xxxxxxxxxxx Xxxxx | ||||||||
Title: Senior Managing Director |
[Amendment No. 10 to Financing Agreement]
LENDERS:
WEST VIRGINIA DIRECT LENDING LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
TCW SKYLINE LENDING LP By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
NJ/TCW DIRECT LENDING LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
TCW BRAZOS FUND LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
[Amendment No. 10 to Financing Agreement]
TCW DIRECT LENDING VII LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
TCW DIRECT LENDING STRUCTURED SOLUTIONS 2019 LLC By: TCW Asset Management Company LLC, its Investment Manager By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
US SPECIALTY INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director | |||||
SAFETY NATIONAL CASUALTY CORP By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director |
[Amendment No. 10 to Financing Agreement]
TCW DL VII FINANCING LLC By: TCW Asset Management Company LLC, its Investment Manager By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director |
[Amendment No. 10 to Financing Agreement]
RELIANCE STANDARD LIFE INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Xxxxxxx Xxxxxx_________________ Name: Xxxxxxx Xxxxxx Title: Managing Director |
[Amendment No. 10 to Financing Agreement]
NH CREDIT PARTNERS III HOLDINGS L.P. By: MS Credit Partners III GP L.P., its general partner By: MS Credit Partners III GP Inc., its general partner | ||||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||||
Name: Xxxxxxx Xxxxxxx | ||||||||
Title: Executive Director | ||||||||
[Amendment No. 10 to Financing Agreement]
WINGSPIRE CAPITAL LLC | ||||||||
By: | /s/ Xxxxxxxxxxx Xxxxx | |||||||
Name: Xxxxxxxxxxx Xxxxx | ||||||||
Title: Senior Managing Director |
[Amendment No. 10 to Financing Agreement]
ANNEX A TO AMENDMENT NO. 10
ANNEX A
Amended Financing Agreement
(See Attached)
FINANCING AGREEMENT
Dated as of December 23, 2019
by and among
as Parent,
EACH SUBSIDIARY OF THE PARENT LISTED AS A BORROWER ON THE SIGNATURE PAGES HERETO,
as Borrowers,
THE PARENT AND EACH SUBSIDIARY OF THE PARENT LISTED AS A GUARANTOR ON THE SIGNATURE PAGES HERETO,
as Guarantors,
as Guarantors,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Xxxxxxx,
as Xxxxxxx,
and
TCW ASSET MANAGEMENT COMPANY LLC,
as Administrative Agent,
as Administrative Agent,
and
WINGSPIRE CAPITAL LLC,
as Revolving Agent
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE LOANS ARE BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. REQUESTS FOR INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT ON THE LOANS MAY BE DIRECTED TO MONDEE, INC., 00000 XXXXX XXXX XXXX, XXXXX 000, XXXXXX, XX 00000.
Table of Contents
Page
Article I DEFINITIONS; CERTAIN TERMS | |||||
Section 1.01 Definitions | |||||
Section 1.02 Terms Generally | |||||
Section 1.03 Certain Matters of Construction | |||||
Section 1.04 Accounting and Other Terms | |||||
Section 1.05 Time References | |||||
Section 1.06 SPAC Restructuring | |||||
Section 1.07 Rates | |||||
Article II THE LOANS | |||||
Section 2.01 Commitments | |||||
Section 2.02 Making the Loans | |||||
Section 2.03 Repayment of Loans; Evidence of Debt | |||||
Section 2.04 Interest | |||||
Section 2.05 Reduction of Commitments; Prepayment of Loans | |||||
Section 2.06 Fees | |||||
Section 2.07 SOFR Option | |||||
Section 2.08 Funding Losses | |||||
Section 2.09 Taxes | |||||
Section 2.10 Increased Costs and Reduced Return | |||||
Section 2.11 Changes in Law; Impracticability or Illegality | |||||
Section 2.12 Mitigation Obligations; Replacement of Lenders | |||||
Section 2.13 Incremental Term Loan. | |||||
Article III [INTENTIONALLY OMITTED] | |||||
Article IV APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS | |||||
Section 4.01 Payments; Computations and Statements | |||||
Section 4.02 Sharing of Payments | |||||
Section 4.03 Apportionment of Payments | |||||
Section 4.04 Defaulting Lenders | |||||
Section 4.05 Administrative Borrower; Joint and Several Liability of the Borrowers | |||||
Article V CONDITIONS TO LOANS | |||||
Section 5.01 Conditions Precedent to Effectiveness | |||||
Section 5.02 Conditions Precedent to All Loans | |||||
Section 5.03 Conditions Subsequent to Effectiveness | |||||
Article VI REPRESENTATIONS AND WARRANTIES | |||||
Section 6.01 Representations and Warranties | |||||
Article VII COVENANTS OF THE LOAN PARTIES AND OTHER COLLATERAL MATTERS |
- i -
Section 7.01 Affirmative Covenants | |||||
Section 7.02 Negative Covenants | |||||
Section 7.03 Financial Covenants | |||||
Article VIII CASH MANAGEMENT ARRANGEMENTS AND OTHER COLLATERAL MATTERS | |||||
Section 8.01 Cash Management Arrangements | |||||
Article IX EVENTS OF DEFAULT | |||||
Section 9.01 Events of Default | |||||
Section 9.02 Cure Right | |||||
Article X AGENTS | |||||
Section 10.01 Appointment | |||||
Section 10.02 Nature of Duties; Delegation | |||||
Section 10.03 Rights, Exculpation, Etc. | |||||
Section 10.04 Reliance | |||||
Section 10.05 Indemnification | |||||
Section 10.06 Agents Individually | |||||
Section 10.07 Successor Agent | |||||
Section 10.08 Collateral Matters | |||||
Section 10.09 Agency for Perfection | |||||
Section 10.10 No Reliance on any Agent's Customer Identification Program | |||||
Section 10.11 No Third Party Beneficiaries | |||||
Section 10.12 No Fiduciary Relationship | |||||
Section 10.13 Reports; Confidentiality; Disclaimers | |||||
Section 10.14 Intercreditor Agreement and Subordination Agreement. | |||||
Section 10.15 Collateral Custodian | |||||
Section 10.16 Administrative Agent May File Proofs of Claim | |||||
Section 10.17 Erroneous Distribution | |||||
Article XI GUARANTY | |||||
Section 11.01 Guaranty | |||||
Section 11.02 Guaranty Absolute | |||||
Section 11.03 Waiver | |||||
Section 11.04 Continuing Guaranty; Assignments | |||||
Section 11.05 Subrogation | |||||
Section 11.06 Contribution | |||||
Section 11.07 Provisions Applicable to Canadian Loan Parties. | |||||
Article XII MISCELLANEOUS | |||||
Section 12.01 Notices, Etc. | |||||
Section 12.02 Amendments, Etc. | |||||
Section 12.03 No Waiver; Remedies, Etc. | |||||
Section 12.04 Expenses; Taxes; Attorneys' Fees | |||||
Section 12.05 Right of Set-off |
- ii -
Section 12.06 Severability | |||||
Section 12.07 Assignments and Participations | |||||
Section 12.08 Counterparts | |||||
Section 12.09 GOVERNING LAW | |||||
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE | |||||
Section 12.11 WAIVER OF JURY TRIAL, ETC. | |||||
Section 12.12 Consent by the Agents and Lenders | |||||
Section 12.13 No Party Deemed Drafter | |||||
Section 12.14 Reinstatement; Certain Payments | |||||
Section 12.15 Indemnification; Limitation of Liability for Certain Damages | |||||
Section 12.16 Records | |||||
Section 12.17 Binding Effect | |||||
Section 12.18 Highest Lawful Rate | |||||
Section 12.19 Confidentiality | |||||
Section 12.20 Public Disclosure | |||||
Section 12.21 Integration | |||||
Section 12.22 USA PATRIOT Act |
- iii -
SCHEDULES AND EXHIBITS
Schedule 1.01(A)(i) Existing Term Loans
Schedule 1.01(A)(ii) Redesignated Term Loans
Schedule 1.01(A)(iii) Amendment No. 9 Term Loan Lenders and Commitments
Schedule 1.01(A)(iv) Revolving Lenders and Commitments
Schedule 1.01(B) Facilities
Schedule 1.01(C) Immaterial Foreign Subsidiaries
Schedule 1.01(D) Make-Whole Calculation
Schedule 6.01(e) Capitalization; Subsidiaries
Schedule 6.01(f) Litigation
Schedule 6.01(i) ERISA
Schedule 6.01(l) Nature of Business
Schedule 6.01(q) Environmental Matters
Schedule 6.01(r) Insurance
Schedule 6.01(u) Intellectual Property
Schedule 6.01(v) Material Contracts
Schedule 7.02(a) Existing Liens
Schedule 7.02(b) Existing Indebtedness
Schedule 7.02(e) Existing Investments
Schedule 7.02(k) Limitations on Dividends and Other Payment Restrictions
Schedule 8.01 Cash Management Accounts
Exhibit A Form of Joinder Agreement
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Notice of Borrowing
Exhibit D Form of SOFR Notice
Exhibit E Form of Note
Exhibit F Form of Compliance Certificate
Exhibit 2.09(e) Forms of U.S. Tax Compliance Certificate
Exhibit 7.01(a)(vi) Forms of [Monthly][Quarterly][Annual] Report
- iv -
FINANCING AGREEMENT
Financing Agreement, dated as of December 23, 2019, by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages hereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” hereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” hereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party hereto (each a “Lender” and collectively, the “Lenders”), TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”).
RECITALS
The Borrowers have asked the Lenders to extend credit to the Borrowers consisting of (a) (i) a term loan A in the aggregate principal amount of $30,000,000 as of the Amendment No. 9 Effective Date consisting of (A) existing term loans in the aggregate principal amount of $15,000,000 that are the subject of an Assignment and Acceptance, dated as of the Amendment No. 9 Effective Date, among certain Lenders, and (y) an additional term loan in the aggregate principal amount of $15,000,000 to be made by certain Lenders to the Borrowers on the Amendment No. 9 Effective Date and (ii) a term loan B in the aggregate principal amount of $137,752,696.40 made by certain Lenders prior to the Amendment No. 9 Effective Date and (b) a revolving credit facility in an aggregate principal amount not to exceed $15,000,000 at any time outstanding. The proceeds of the Loans shall be used to (A) pay fees and expenses incurred in connection with Amendment No. 9 and (B) fund general corporate purposes of the Loan Parties. The Borrowers hereby acknowledge and agree that the aggregate principal amount of the term loans outstanding immediately prior to the Amendment No. 9 Effective Date is equal to $152,752,696.44. The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth.
In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:
I.
DEFINITIONS; CERTAIN TERMS
DEFINITIONS; CERTAIN TERMS
A.Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below:
“18 Month Anniversary Date” has the meaning set forth in the definition of “Applicable Margin”.
“Account Debtor” means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection with any Account of such Person.
- 1 -
“Acquired EBITDA” means, with respect to any Acquired Entity or Business for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business (determined in accordance with the definition of “Consolidated EBITDA”).
“Acquired Entity or Business” has the meaning specified therefor in the definition of “Consolidated EBITDA.”
“Acquisition” means the acquisition (whether by means of a merger, consolidation, amalgamation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.
“Action” has the meaning specified therefor in Section 12.12.
“Additional Amount” has the meaning specified therefor in Section 2.09(a).
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administration Fee” has the meaning specified therefor in Section 2.06(c).
“Administrative Agent” has the meaning specified therefor in the preamble hereto.
“Administrative Agent's Account” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Secured Parties under this Agreement and the other Loan Documents.
“Administrative Borrower” has the meaning specified therefor in Section 4.05.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party.
“After Acquired Property” has the meaning specified therefor in Section 6.01(a).
“Agent” and “Agents” have the meaning specified therefor in the preamble hereto.
“Agent Advances” has the meaning specified therefor in Section 10.08(a).
“Agreement” means this Financing Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to this Agreement as the same may be in effect at the time such reference becomes operative.
- 2 -
“Amadeus Contract” means that certain Strategic Alliance Agreement, dated as of January 1, 2019, by and between Amadeus North America, Inc. and Mondee.
“Amendment No. 2” means Amendment No. 2 to Financing Agreement, dated as of May 1, 2020, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 2 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 2.
“Amendment No. 2 Equity Contribution” means an equity contribution to the Parent from an equity investor reasonably acceptable to the Administrative Agent providing for Net Cash Proceeds to the Parent of not less than $11,000,000 on terms and conditions reasonably acceptable to the Administrative Agent.
“Amendment No. 3” means Amendment No. 3 to Financing Agreement, dated as of September 3, 2020, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 3 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 3.
“Amendment No. 4” means Amendment No. 4 to Financing Agreement, dated as of June 22, 2021, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 4 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 4.
“Amendment No. 5” means Amendment No. 5 to Financing Agreement, dated as of December 31, 2021, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 5 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 5.
“Amendment No. 6” means Amendment No. 6 to Financing Agreement, dated as of April 15, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 6 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 6.
“Amendment No. 7” means Amendment No. 7 to Financing Agreement, dated as of July 8, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Amendment No. 7 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 7.
“Amendment No. 8” means Amendment No. 8 to Financing Agreement, dated as of October 24, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
- 3 -
“Amendment No. 8 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 8.
“Amendment No. 9” means Amendment No. 9 to Financing Agreement, dated as of January 11, 2023, among the Loan Parties party thereto, the Agents and the Lenders party thereto.
“Amendment No. 9 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 9.
“Amendment No. 9 Fee” has the meaning specified therefor in Section 2.06(a)(ii).
“Amendment No. 9 Term Loan” means, collectively, the Loans made by the Amendment No. 9 Term Loan Lenders to the Borrowers pursuant to Section 2.01(a)(iii).
“Amendment No. 9 Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make the Amendment No. 9 Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A)(iii) hereto (as amended from time to time), or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.
“Amendment No. 9 Term Loan Lender” means a Lender with an Amendment No. 9 Term Loan Commitment or an Amendment No. 9 Term Loan.
“Amendment No. 10” means Amendment No. 10 to Financing Agreement, dated as of January 31, 2023, among the Loan Parties party thereto, the Agents and the Lenders party thereto.
“Amendment No. 10 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 10.
“American Express Contract” means that certain Master Services Agreement, dated as of January 4, 2018, by and between GBT Travel Services UK Limited d/b/a American Express Global Business Travel and Mondee.
“American Express Material Contract Period” means a period (a) commencing on the last day of any Fiscal Quarter for which financial statements are delivered or required to be delivered pursuant to Section 7.01(a)(ii) that disclose revenue from the American Express Contract of greater than $7,500,000 for the twelve month period then ended and (b) ending on the last day of any Fiscal Quarter ending thereafter for which financial statements are delivered or required to be delivered pursuant to Section 7.01(a)(ii) that disclose revenue from the American Express Contract of less than or equal to $7,500,000 for the twelve month period then ended.
“Anti-Bribery and Corruption Laws” has the meaning specified therefor in Section 6.01(z)(i).
“Anti-Money Laundering Laws” means all Requirements of Law concerning or relating to terrorism or money laundering, including, without limitation, the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956-1957), the USA PATRIOT Act and the Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and §§ 1951-1959), and the rules and regulations thereunder, any applicable law prohibiting or directed against the financing or support of terrorist
- 4 -
activities (including, without limitation, 18 U.S.C. §§ 2339A and 2339B), and the Canadian Anti-Terrorism Laws.
“Applicable Margin” means, as of any date of determination, (a) during the period from and after the Effective Date through and including June 30, 2021, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 9.50% per annum and (ii) any SOFR Loan or any portion thereof, 10.50% per annum, (b) during the period after June 30, 2021 through and including September 30, 2021, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 8.50% per annum and (ii) any SOFR Loan or any portion thereof, 9.50% per annum, (c) during the period after September 30, 2021 through and including March 31, 2022, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 9.50% per annum and (ii) any SOFR Loan or any portion thereof, 10.50% per annum, (d) during the period after March 31, 2022 through and including the date of the consummation of the SPAC Restructuring, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 8.50% per annum and (ii) any SOFR Loan or any portion thereof, 9.50% per annum, and (e) thereafter, the relevant Applicable Margin shall be set at the respective level indicated below for each Fiscal Quarter based upon the average daily balance of the outstanding Term Loan Obligations during the immediately preceding Fiscal Quarter:
Level | Amount of Term Loan Obligations | Reference Rate Loan | SOFR Loan | ||||||||
I | ≥ $130,000 | 7.50% | 8.50% | ||||||||
II | < $130,000 but ≥ $120,000 | 7.00% | 8.00% | ||||||||
III | < $120,000 but ≥ $110,000 | 7.00% | 7.50% | ||||||||
IV | < $110,000 | 6.00% | 7.00% |
provided, however, from and after the first day of the first Fiscal Quarter following the 18 month anniversary of the consummation of the SPAC Restructuring (such date, the “18 Month Anniversary Date”), the Applicable Margin, with respect to the interest rate of (a) any Reference Rate Loan or any portion thereof and (b) any SOFR Loan or any portion thereof, shall be set at the Applicable Margin Level in effect on the last day of the Fiscal Quarter during which such 18 Month Anniversary Date occurs.
“Applicable Premium” means
(1) prior to the consummation of the SPAC Restructuring (such date, the “SPAC Effective Date”):
(a) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (b), (c) or (d) of the definition thereof:
(i) [reserved];
- 5 -
(ii) [reserved];
(iii) during the period after the date that is the 30 month anniversary of the Effective Date up to and including the date that is the 42 month anniversary of the Effective Date (the “Third Period”), an amount equal to 3.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event;
(iv) during the period after the Third Period up to and including the date that is the 54 month anniversary of the Effective Date (the “Fourth Period”), an amount equal to 1.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and
(v) thereafter, zero; and
(b) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (a) of the definition thereof:
(i) [reserved];
(ii) [reserved];
(iii) during the Third Period, an amount equal to 3.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date;
(iv) during the Fourth Period, an amount equal to 1.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; and
(v) thereafter, zero; and
(2) from and after the SPAC Effective Date:
(a)as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (b), (c) or (d) of the definition thereof:
(i)during the period commencing on the SPAC Effective Date up to and including the date that is the six (6) month anniversary of the SPAC Effective Date (the “First SPAC Period”), an amount equal to 0% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event;
(ii)during the period after the First SPAC Period up to and including the date that is the twelve (12) month anniversary of the SPAC Effective Date (the “Second SPAC Period”), an amount equal to 1.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and
- 6 -
(iii)thereafter, an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and
(b)as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (a) of the definition thereof:
(i)during the First SPAC Period, an amount equal to 0.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date;
(ii)during the Second SPAC Period, an amount equal to 1.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; and
(iii)thereafter, an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event.
“Applicable Premium Trigger Event” means:
(a) any payment by any Loan Party of all, or any part, of the principal balance of any Term Loan for any reason (including, without limitation, any optional prepayment or mandatory prepayment (other than (i) any repayment of any Term Loan pursuant to Section 2.03(b) and (ii) any mandatory prepayment of any Term Loan pursuant to Section 2.05(c)(i)), whether before or after (A) the occurrence of an Event of Default, or (B) the commencement of any Insolvency Proceeding, and notwithstanding any acceleration (for any reason) of the Term Loan Obligations (but without duplication of clause (b) or (c) of this definition below);
(b) the acceleration of the Term Loan Obligations for any reason, including, without limitation, acceleration in accordance with Section 9.01, including as a result of the commencement of an Insolvency Proceeding;
(c) the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Term Loan Obligations in any Insolvency Proceeding, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any Insolvency Proceeding to any Agent, for the account of the Lenders in full or partial satisfaction of the Term Loan Obligations; or
(d) the termination of this Agreement for any reason.
“Assignment and Acceptance” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Administrative Agent (and the Revolving Agent, if applicable), in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto or such other form acceptable to the Administrative Agent (and the Revolving Agent, if applicable).
“Authorized Officer” means, with respect to any Person, the chief executive officer, chief operating officer, chief financial officer, corporate controller, treasurer or other financial officer performing similar functions, president or executive vice president of such Person.
- 7 -
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.07(g)(iv).
“Availability” means the difference between (a) the Total Revolving Credit Commitment and (b) the aggregate outstanding principal amount of all Revolving Loans.
“Average Liquidity” means, for any period, the sum of the aggregate amount of Liquidity for each day in such period divided by the number of days in such period.
“Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time and any successor statute or any similar federal or state law for the relief of debtors.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.07(g)(i).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent in consultation with the Administrative Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent in consultation with the Administrative Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published
- 8 -
component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of
- 9 -
information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(g) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(g).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors” means with respect to (a) any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) a partnership, the board of directors of the general partner of the partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person serving a similar function.
“Borrower” has the meaning specified therefor in the preamble hereto.
“Brazil Security Documents” means (a) the Brazil share pledge over Orinter (the “Brazil Share Pledge”), duly registered with the applicable Registry of Titles and Deeds, as well as evidence of the registration of such pledge on Orinter’s Share Register Book, together with the respective deliverables set out or annexed or referred to therein, including, without limitation, a power of attorney granting powers for the Administrative Agent to enforce the pledge in the situations described therein, and (b) any other document governed by the laws of Brazil in connection with the Brazil Share Pledge as may reasonably be required by the Administrative Agent (acting on advice of local counsel), as each such Brazil Security Document is amended, restated, supplemented or otherwise modified from time to time.
“Business Day” means (a) for all purposes other than as described in clause (b) below, any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required to close, and (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, SOFR Loans, any U.S. Government Securities Business Day.
“Canadian A/R Transaction” means, with respect to the Canadian Subsidiary, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which the Canadian Subsidiary may sell, convey or otherwise transfer or grant a security interest in accounts receivable directly to a financing partner or a Special Purpose Subsidiary and funded by such financing partner, so long as the obligations under such Canadian A/R Transaction are non-recourse (except for customary representations, warranties, covenants
- 10 -
and indemnities made in connection with such transactions) to the Parent or any of its Subsidiaries (other than a Special Purpose Subsidiary).
“Canadian A/R Related Property” means accounts receivable which are sold, conveyed, contributed or transferred pursuant to a Canadian A/R Transaction.
“Canadian Anti-Terrorism Laws” shall mean the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), and the United Nations Act (Canada) or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Corruption of Foreign Public Officials Act (Canada) the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations al-Qaida and Taliban Regulations promulgated under the United Nations Act (Canada).
“Canadian Benefit Plans” means any plan, fund, program, or policy, whether oral or written, 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 any of the Loan Parties or any Subsidiary has any liability with respect to any employee or former employee related to employment in Canada, but excluding any Canadian Pension Plans.
“Canadian Collateral” means Collateral consisting of assets or interests in assets of any Canadian Loan Party or assets or interests of Loan Parties which are otherwise located in Canada, and the proceeds thereof.
“Canadian DB Pension Plan” means any Canadian Pension Plan which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada).
“Canadian Loan Party” means the Canadian Subsidiary and any other Loan Party organized under the laws of Canada or any province or territory thereof.
“Canadian Pension Plans” means any plan or arrangement that is required to be registered under Canadian federal or provincial law and is or was established, maintained or contributed to or required to be contributed to by a Loan Party or any Subsidiary of a Loan Party for its employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.
“Canadian Security Agreement” means the Canadian Security Agreement, dated of even date herewith, in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by any Canadian Loan Party or any other applicable Loan Party with respect to Canadian Collateral.
“Canadian Security Documents” means the Canadian Security Agreement and any other agreement governed by the laws of Canada, or any province or territory thereof, which are required by the Administrative Agent and which are entered into at any time by any Loan Party in connection with this Agreement with respect to Canadian Collateral.
“Canadian Subsidiary” means Skylink Travel, Inc., a corporation organized under the laws of British Columbia, Canada.
“CapEx Cure Right” has the meaning specified therefor in Section 7.03(a).
- 11 -
“CapEx Equity Contribution” has the meaning specified therefor in Section 7.03(a).
“Capital Expenditures” means, with respect to any Person for any period, the sum of (a) the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed, including all Capitalized Lease Obligations, obligations under synthetic leases and capitalized software costs that are paid or due and payable during such period and (b) to the extent not covered by clause (a) above, the aggregate of all expenditures by such Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or fixed assets of, or the Equity Interests of, any other Person; provided, that the term “Capital Expenditures” shall not include any such expenditures which constitute (i) expenditures by a Loan Party made in connection with the replacement, substitution or restoration of such Loan Party's assets pursuant to Section 2.05(c)(vi) from the Net Cash Proceeds of Dispositions and Extraordinary Receipts consisting of insurance proceeds or condemnation awards, (ii) expenditures financed with the proceeds received from the sale or issuance of Equity Interests to a Permitted Holder or any other Person permitted under this Agreement so long as (A) the Borrowers are not required to make a prepayment of the Loans with such proceeds pursuant to Section 2.05(c)(iii) or Section 2.05(c)(v) and (B) such proceeds are not commingled with any Loan Party's funds and, after the Control Account Deadline, are deposited in an account subject to a Control Agreement and used exclusively to fund such expenditures, (iii) a Permitted Acquisition, (iv) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period), and (v) the purchase price of equipment that is purchased substantially contemporaneously with the trade in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time.
“Capitalized Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person.
“Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.
“CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, as amended, and the related rules and regulations promulgated thereunder.
“CARES Act Indebtedness” means any loan or other financial accommodation under the Paycheck Protection Program established pursuant to the CARES Act under 15 U.S.C. 636(a)(36) (as added to the Small Business Act by Section 1102 of the CARES Act); provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the CARES Act and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements under the Paycheck Protection Program established pursuant to the CARES Act to incur such Indebtedness.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270
- 12 -
days after the date of issue rated P 1 by Moody's or A 1 by Standard & Poor's; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; and (f) marketable tax exempt securities rated A or higher by Moody's or A+ or higher by Standard & Poor's, in each case, maturing within 270 days from the date of acquisition thereof.
“Cash Management Accounts” means the bank accounts of each Loan Party maintained at one or more Cash Management Banks listed on Schedule 8.01.
“Cash Management Bank” has the meaning specified therefor in Section 8.01(a).
“CEBA Program” means the Canada Emergency Business Account program created by the Government of Canada.
“CEBA Indebtedness” means any loan or other financial accommodation under the CEBA Program, provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the CEBA Program and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements established pursuant to the CEBA Program to incur such Indebtedness.
“CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States Environmental Protection Agency.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy 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 shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means each occurrence of any of the following:
(a) prior to the SPAC Effective Date, the Permitted Holders cease to beneficially and of record own and control, directly or indirectly, at least the greater of (i) 30.0% of the Parent Class A Units and 50.1% of the Parent Class B Units and (ii) 80% of the percentage of the aggregate outstanding voting or economic power of the Equity Interests of the Parent that the Permitted Holders owned or controlled on the Effective Date, in each case, on a fully diluted basis;
- 13 -
(b) from and after the SPAC Effective Date, any Person (other than the Permitted Holders) or Persons (other than one or more of the Permitted Holders) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becoming the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Equity Interests representing more than 50% of the aggregate voting or economic power represented by the then issued and outstanding Equity Interests of the Parent and the percentage of aggregate voting or economic power so held is greater than the percentage of the aggregate voting or economic power represented by the Equity Interests of the Parent beneficially owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the aggregate by the Permitted Holders;
(c) [Reserved];
(d) the Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of (i) 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party and each of its Subsidiaries that are not Immaterial Foreign Subsidiaries and (ii) at least 98% of the aggregate voting or economic power of each of its Subsidiaries that are Immaterial Foreign Subsidiaries (in each case, other than in connection with any transaction permitted pursuant to Section 7.02(c)(i)), free and clear of all Liens (other than Permitted Specified Liens);
(e) Xxxxxx Xxxxxxxxxxx shall cease to be involved in the day to day operations and management of the business of the Parent and its Subsidiaries, and a successor reasonably acceptable to the Required Lenders is not appointed on terms reasonably acceptable to the Required Lenders within 90 days of such cessation of involvement; or
(f) [Reserved].
“Closing Fee” has the meaning specified therefor in Section 2.06(a)(i).
“Collateral” has the meaning specified therefor in the Security Agreement.
“Collections” means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds).
“Commitments” means, with respect to each Lender, such Xxxxxx's Revolving Credit Commitment and Term Loan Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” has the meaning assigned to such term in Section 7.01(a)(iv).
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Reference Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the
- 14 -
applicability of Section 2.08 and other technical, administrative or operational matters) that the Administrative Agent decides may be reasonably necessary or appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary or appropriate in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, with respect to any Person for any period:
(a) the Consolidated Net Income of such Person for such period,
plus
(b) without duplication, the sum of the following amounts for such period to the extent deducted (other than clause (ix) below) in the calculation of Consolidated Net Income for such period:
(i) any provision for United States federal income taxes or other taxes measured by net income,
(ii) Consolidated Net Interest Expense,
(iii) any depreciation and amortization expense,
(iv) any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,
(v) any transaction fees, costs and expenses incurred in connection with the consummation of the Falcon Acquisition, the initial funding of the Loans and the consummation of the other Transactions on the Effective Date, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period,
(vi) any transaction fees, costs and expenses incurred in connection with any completed or potential Permitted Acquisition (including the Kilimanjaro Acquisition but excluding the Orinter Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure or other transaction permitted by this Agreement, regardless of whether any such transaction is consummated, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable, (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period and (C) in the case of any unconsummated Permitted Acquisition (other than, if applicable, the Kilimanjaro Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure or other transaction, do not exceed 3.00% of the Consolidated EBITDA of the Parent and its Subsidiaries in the aggregate for all such unconsummated transactions for such period,
- 15 -
(vii) any one-time extraordinary, unusual or non-recurring charges, expenses or losses to the extent such charges, expenses or losses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period,
(viii) any business optimization and restructuring expenses, to the extent such expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period,
(ix) (A) any pro forma cost savings, operating expense reductions, business optimizations, other operating improvements and other business synergies, and (B) any acquisition synergies for the Falcon Acquisition, the Kilimanjaro Acquisition or any other Permitted Acquisition (excluding the Orinter Acquisition) (net of the amount of actual benefits received) (calculated on a pro forma basis as though such cost savings, reductions, improvements and synergies had been realized on the first day of such period and as if such cost savings, reductions, improvements and synergies were realized during the entirety of such period), in each case, to the extent (A) such savings, reductions, improvements and synergies result from actions taken during such period, (B) the full “run rate” benefits of such savings, reductions, improvements and synergies are anticipated by the Parent (in the good faith determination of the Parent) to be fully realized within 12 months of the date on which such action is taken, (C) such savings, reductions, improvements and synergies are reasonably identifiable, factually supportable, reasonably attributable to the actions taken and reasonably anticipated to result from such actions taken and (D) have been set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, and
(x) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory),
minus
(c) without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:
(i) any credit for United States federal income taxes or other taxes measured by net income,
(ii) any gain from extraordinary, unusual or non-recurring items,
(iii) any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and
(iv) any other non-cash gain, including any reversal of a charge referred to in clause (b)(ix) above by reason of a decrease in the value of any Equity Interest;
in each case, determined on a consolidated basis in accordance with GAAP.
Notwithstanding the foregoing:
(i)in no event shall the aggregate amount of all the addbacks described in clauses (v) (excluding amounts paid on or before the Effective Date), (vi), (vii), (viii) and (ix) above exceed (1) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending December 31, 2019, 30% of the Consolidated EBITDA of the Parent and its
- 16 -
Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (2) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending March 31, 2020, 25% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (3) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending June 30, 2020, 20% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (4) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending September 30, 2020, 15% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period) and (5) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending December 31, 2020 and for each 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending thereafter, 12.5% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period);
(ii)for purposes of calculating the Consolidated EBITDA of the Parent and its Subsidiaries for any period, the Consolidated EBITDA of the Foreign Subsidiaries of the Parent that are not Loan Parties in an amount in excess of the Foreign EBITDA Contribution Amount shall be disregarded for all purposes with respect to such calculation of the Consolidated EBITDA of the Parent and its Subsidiaries for such period; and
(iii)there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Parent or any of its Subsidiaries during such period to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) based on the Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period.
Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA of the Parent and its Subsidiaries under this Agreement, the Acquired EBITDA in connection with the Kilimanjaro Acquisition for the Fiscal Quarters ended December 31, 2018, March 31, 2019, June 30, 2019 and September 30, 2019 shall be deemed to be $2,357,937.52, $1,624,847.16, $3,151,949.23 and $3,841,033.22 respectively, and the Acquired EBITDA in connection with the Kilimanjaro Acquisition for the twelve month period ended September 30, 2019 shall be deemed to be $10,975,767.13.
“Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the net income of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries.
“Consolidated Net Interest Expense” means, with respect to any Person for any period, (a) gross interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP (including, without limitation, interest
- 17 -
expense paid to Affiliates of such Person), less (b) the sum of (i) interest income for such period and (ii) gains for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent not included in gross interest expense) and (ii) the upfront costs or fees for such period associated with Hedging Agreements (to the extent not included in gross interest expense), in each case, determined on a consolidated basis and in accordance with GAAP.
“Contingent Indemnity Obligations” means any Obligation constituting a contingent, unliquidated indemnification obligation of any Loan Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto.
“Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent, and in the case of any Canadian Loan Party, shall also include any such arrangement with respect to a deposit account to maintain cash management in form and substance satisfactory to the Administrative Agent.
“Control Agreement Deadline” means May 31, 2020, as such deadline may be extended in accordance with Amendment No. 2.
- 18 -
“Controlled Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Cure Right” has the meaning specified therefor in Section 9.02.
“Current Value” has the meaning specified therefor in Section 7.01(m).
“Debtor Relief Law” means the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies Creditors Arrangement Act (Canada) and the Winding-Up and Restructuring Act (Canada), and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States, Canada or other applicable jurisdiction from time to time in effect, including, without limitation, any corporate law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors.
“Default” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Xxxxxx's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within 2 Business Days of the date when due (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (a) upon receipt by the Administrative Agent of such portion of the Loans or other amount from such Lender), (b) has notified the Administrative Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx's obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx's determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity. Notwithstanding anything to the contrary herein, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
- 19 -
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Administrative Borrower and each Lender.
“Disbursement Letter” means a disbursement letter, in form and substance satisfactory to the Administrative Agent, by and among the Loan Parties, the Administrative Agent, the Lenders and the other Persons party thereto, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with the transactions contemplated to occur on the Effective Date.
“Disposition” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person. For purposes of clarification, “Disposition” shall include (a) the sale or other disposition for value of any contracts, (b) any disposition of property through a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, (c) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification) or (d), any sale of merchant accounts (or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any Loan Party.
“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations and the termination of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is 91 days after the Final Maturity Date.
“Disqualified Lender” means any Person identified by the Administrative Borrower in writing to the Administrative Agent prior to the Effective Date as a “Disqualified Lender”. Notwithstanding anything to the contrary contained in this Agreement, (a) no Agent shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders and (b) the Administrative Borrower (on behalf of itself and the other Loan Parties) and the Lenders acknowledge and agree that no Agent shall have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and that no Agent shall have any liability with respect to any assignment or participation made to a Disqualified Lender.
“Dollar,” “Dollars” and the symbol “$” each means lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
- 20 -
“Earnout Obligation” means, with respect to any Person, any earn-out, purchase price adjustment or similar obligation incurred by such Person in connection with any Acquisition (in each case, valued at the maximum potential amount thereof).
“Effective Date” has the meaning specified therefor in Section 5.01.
“Employee Plan” means an employee benefit plan within the meaning of Section 3(3) of ERISA (other than a Multiemployer Plan), regardless of whether subject to ERISA, that any Loan Party or any of its ERISA Affiliates maintains, sponsors or contributes to or is obligated to contribute to.
“Environmental Claim” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving any alleged or actual (a) violation of or liability under any Environmental Law; or (b) manufacture, use, handling, generation, transportation, storage, treatment, Release, threatened Release or disposal or exposure to any Hazardous Materials.
“Environmental Law” means any Requirement of Law relating to or concerning (i) the protection of the environment, natural resources, human health or safety, or (ii) the manufacture, use, handling, generation, transportation, storage, treatment, Release, threatened Release, presence or disposal of or exposure to any Hazardous Material.
“Environmental Liability” means all liabilities (contingent or otherwise, known or unknown), monetary obligations, losses (including monies paid in settlement), damages, natural resource damages, costs and expenses (including all reasonable fees, costs, client charges and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest arising directly or indirectly as a result of or based upon (a) any Environmental Claim; (b) any actual, alleged or threatened non-compliance with Environmental Law or Environmental Permit; (c) any actual, alleged or threatened Release of or exposure to Hazardous Materials; (d) any Remedial Action; (f) any environmental condition; or (g) any contract, agreement, or other arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liability.
“Environmental Permit” means any permit, license, authorization, approval, registration or entitlement required by or issued pursuant to any Environmental Law or by any Governmental Authority pursuant to Environmental Law.
“Equity Interests” means (a) 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 and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.
“Equity Issuance” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by the Parent of any cash capital contributions.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case,
- 21 -
as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.
“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” or under “common control” within the meaning of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code or Sections 4001(a)(14) or 4001(b)(1) of ERISA.
“ERISA Event” means (a) the occurrence of a Reportable Event with respect to any Pension Plan; (b) the failure to meet the minimum funding standards of Section 412 or 430 of the Internal Revenue Code or Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make a contribution or installment required under Section 412 or Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Internal Revenue Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Internal Revenue Code or Section 305 of ERISA; (e) the filing of a notice of intent to terminate a Pension Plan or the treatment of an amendment to a Pension Plan as a termination under Section 4041 of ERISA; (f) the withdrawal by any Loan Party or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any Loan Party or any of its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (g) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition that might constitute grounds under XXXXX for the termination of, or the appointment of a trustee to administer, any Pension Plan; (h) the imposition of liability on any Loan Party or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069(a) of ERISA or by reason of the application of Section 4212(c) of ERISA; (i) the withdrawal of any Loan Party or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan or the receipt by any Loan Party or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (j) the occurrence of an act or omission which could give rise to the imposition of material fines, penalties, taxes or related charges on any Loan Party or any of its ERISA Affiliates under Sections 4975 or 4971 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Plan; (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent, upon any Loan Party or any of its ERISA Affiliates; (l) the assertion of a claim (other than routine claims for benefits) against any Employee Plan or the assets thereof, or against any Loan Party or any of its ERISA Affiliates in connection with any Employee Plan or Multiemployer Plan, in each case, that could be reasonably expected to result in a material liability to any Loan Party or any of its ERISA Affiliates; (m) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such Pension Plan (or such other Employee Plan) to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (n) the imposition on any Loan Party of any material fine, excise tax or penalty with respect to any Employee Plan or Multiemployer Plan resulting from any noncompliance with any Requirements of Law; (o) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; or (p) the occurrence of any Foreign Plan Event.
“Erroneous Distribution” has the meaning specified therefor in Section 10.17.
- 22 -
“Event of Default” has the meaning specified therefor in Section 9.01.
“Excess Cash Flow” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, less (b) the sum of, without duplication, (i) all cash principal payments (excluding any principal payments made pursuant to Section 2.05(c)) on the Loans made during such period (but, in the case of the Revolving Loans, only to the extent that the Total Revolving Credit Commitment is permanently reduced by the amount of such payments), and all cash principal payments on other Indebtedness of such Person or any of its Subsidiaries during such period to the extent such other Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (but, in the case of revolving loans, only to the extent that the revolving credit commitment in respect thereof is permanently reduced by the amount of such payments) and any premium, make-whole or penalty payments associated with any such cash principal payments (in each case, solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period (solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (iii) the cash portion of (A) Capital Expenditures (including, for the avoidance of doubt, capitalized software expenditures), (B) the Purchase Price (including the Falcon Earnout Obligations but excluding any other Earnout Obligations) in respect of Permitted Acquisitions to the extent paid during such period and (C) the purchase price in respect of Permitted Investments, in each case, made by such Person and its Subsidiaries during such period to the extent permitted to be made under this Agreement (but excluding or reducing any Capital Expenditures, Permitted Acquisitions or Permitted Investments to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all scheduled loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (in each case, solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (v) income taxes paid in cash by such Person and its Subsidiaries for such period (solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (vi) any amounts added back to Consolidated EBITDA for such period pursuant to clauses (iv) through (viii) of the definition of Consolidated EBITDA, to the extent paid in cash and deducted in the calculation of Consolidated Net Income during such period, (vii) any amounts added back to Consolidated EBITDA for such period pursuant to clause (ix) of the definition of Consolidated EBITDA, and (viii) the excess, if any, of Working Capital at the end of such period over Working Capital at the beginning of such period (or minus the excess, if any, of Working Capital at the beginning of such period over Working Capital at the end of such period).
“Excess Payables” means, as of any date of determination on or after June 30, 2020, any trade payables or other accounts payable of the Loan Parties and their Subsidiaries that, on such date, are more than 90 days past due.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Account” means (a) any deposit account specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party's employees, (b) any Xxxxx Cash Accounts, (c) any deposit account specifically and exclusively used as cash collateral for letters of credit permitted under clause (j) of the definition of Permitted Indebtedness, (d) any segregated deposit account specifically and exclusively used to hold the proceeds of any CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness, and (e) any deposit account specifically and exclusively used in
- 23 -
connection with virtual cards, provided that the aggregate amount on deposit in all such deposit accounts which are not subject to a Control Agreement does not exceed $5,000,000 at any time.
“Excluded Equity Issuance” means (a) in the event that the Parent or any of its Subsidiaries forms any Subsidiary in accordance with this Agreement, the issuance by such Subsidiary of Equity Interests to the Parent or such Subsidiary, as applicable, (b) the issuance of Permitted Cure Equity and any issuance in connection with a CapEx Equity Contribution, (c) the issuance of Equity Interests of the Parent to directors, officers and employees of the Parent and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors of the Parent, (d) the issuance of Equity Interests of the Parent in order to finance the purchase consideration (or a portion thereof) in connection with a Permitted Acquisition, (e) the issuance of Equity Interests by the Parent to any Person so long as the amount of such issuances of Equity Interests pursuant to this clause (e) is (i) at least $500,000 for any individual issuance and (ii) not greater than $5,000,000 in the aggregate for all such issuances during the term of this Agreement (it being understood and agreed that for purposes of Section 7.03(e), the proceeds of any such issuance shall be deemed to be received by the Parent on the first day of the fiscal month in which such issuance is consummated), and (f) the issuance of Equity Interests by a Subsidiary of the Parent to its parent or member in connection with the contribution by such parent or member to such Subsidiary of the proceeds of an issuance described in clauses (a) – (e) above.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor's failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee of such Guarantor becomes effective with respect to such related Swap Obligation.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.12(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.09, amounts with respect to such Taxes were payable either to such Xxxxxx's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient's failure to comply with Section 2.09(e), (d) any U.S. federal withholding Taxes imposed under FATCA, and (e) in the case of Taxes under Part XIII of the Income Tax Act (Canada) imposed on amounts payable to or for the account of such Recipient as a consequence of the Recipient (A) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Loan Parties, (B) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Loan Parties, or (C) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Loan Parties but, for greater certainty, a Lender shall not be considered to be or deemed to be not
- 24 -
dealing at arm’s length or a “specified shareholder” by virtue of it taking, holding, being warranted or issued or holding or enforcing any security or Lien in the Collateral.
“Executive Order No. 13224” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“Existing Credit Facilities” means each of (a) the Senior Loan Agreement, dated as of December 20, 2018, by and among Mondee, the other Borrowers party thereto and MUFG Union Bank, N.A. and (b) the Amended and Restated Note Purchase Agreement, dated as of August 7, 2018, by and among North Haven Credit Partners II, L.P., as agent, the Holders party thereto, Mondee and certain other Borrowers, each as amended, modified and restated before the Effective Date.
“Existing Lenders” means the lenders or note holders party to the Existing Credit Facilities.
“Existing Term Loans” has the meaning specified therefor in Section 2.01(a)(ii).
“Extraordinary Receipts” means any cash received by the Parent or any of its Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.05(c)(ii) or (iii) hereof), including, without limitation, (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) proceeds of insurance (other than to the extent such insurance proceeds are (i) immediately payable to a Person that is not the Parent or any of its Subsidiaries in accordance with applicable Requirements of Law or with Contractual Obligations entered into in the ordinary course of business or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any out-of-pocket costs incurred or made by such Person prior to the receipt thereof directly related to the event resulting from the payment of such proceeds), (d) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (e) condemnation awards (and payments in lieu thereof), (f) indemnity payments (other than to the extent such indemnity payments are (i) immediately payable to a Person that is not an Affiliate of the Parent or any of its Subsidiaries or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any costs previously incurred or any payment previously made by such Person) and (g) any purchase price adjustment received in connection with any purchase agreement.
“Facility” means the real property identified on Schedule 1.01(B) and any New Facility hereafter acquired by the Parent or any of its Subsidiaries, including, without limitation, the land on which each such facility is located, all buildings and other improvements thereon, and all fixtures located thereat or used in connection therewith.
“Falcon Acquisition” means the acquisition by Mondee of the Falcon Acquisition Assets pursuant to the Falcon Acquisition Documents.
“Falcon Acquisition Agreement” means the Equity Interest Purchase Agreement, dated as of December 20, 2019, by and between Mondee, as buyer, and the Falcon Seller, as seller, as amended by the First Amendment to Equity Interest Purchase Agreement, dated May 15, 2020.
“Falcon Acquisition Assets” means the “Purchased Shares” (as defined in the Falcon Acquisition Agreement).
- 25 -
“Falcon Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of the date hereof, and in form and substance satisfactory to the Administrative Agent, made by Xxxxxx in favor of the Administrative Agent.
“Falcon Acquisition Documents” means the Falcon Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
“Falcon Earnout Obligations” means the Earnout Obligations contemplated to be paid pursuant to Section 2.2(e) of the Falcon Acquisition Agreement (as in effect on the Effective Date), in an aggregate amount not to exceed $2,700,000 during the term of this Agreement.
“Falcon Seller” means Xxxxxxx Xxxxxx, an individual.
“Falcon Subsidiaries” means AVIA TRAVEL AND TOURS, INC., LBF Acquisition Corporation, Inc. and LBF Travel Holdings, LLC.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal, tax or regulatory legislation, rules or official practices adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of Sections 1471 through 1474 of the Internal Revenue Code and the Treasury Regulations thereunder.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Final Maturity Date” means December 23, 2024.
“Financial Statements” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2018 and the related consolidated statement of operations, shareholders' equity and cash flows for the Fiscal Year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the 10 months ended October 31, 2019, and the related consolidated statement of operations, shareholder's equity and cash flows for the 10 months then ended.
“Fiscal Quarter” means each fiscal quarter of each Fiscal Year.
“Fiscal Year” means the fiscal year of the Parent and its Subsidiaries ending on December 31 of each year.
“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of (a) Consolidated EBITDA of such Person and its Subsidiaries for such period minus
- 26 -
Capital Expenditures made by such Person and its Subsidiaries during such period (but only to the extent such Capital Expenditures were not financed by Indebtedness or with the proceeds of Equity Interests), to (b) the sum of (i) all principal of Indebtedness of such Person and its Subsidiaries (other than Earnout Obligations) scheduled to be paid or prepaid in cash during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Net Interest Expense of such Person and its Subsidiaries for such period to the extent paid or payable in cash, plus (iii) income taxes paid or payable in cash by such Person and its Subsidiaries during such period, plus (iv) cash dividends or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with any merger, amalgamation or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions paid by a Loan Party to any other Loan Party) during such period.
“Floor” means a rate of interest equal to 1.75%.
“Foreign EBITDA Contribution Amount” means, for any period, an amount (not less than zero) equal to the lesser of (a) 2.5% of Consolidated EBITDA of the Parent and its Subsidiaries for such period (to the extent Consolidated EBITDA is a positive number) and (b) $1,000,000.
“Foreign Lender” has the meaning specified therefor in Section 2.09(e).
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained, sponsored or contributed to, or for which there is an obligation to contribute to, by any Loan Party or any of its Subsidiaries that is subject to any Requirements of Laws other than, or in addition to, the laws of the United States or any state thereof or the laws of the District of Columbia.
“Foreign Plan Event” means, with respect to any Foreign Plan or any Canadian Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any Requirement of Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make any required contribution or payment under any Requirement of Law within the time permitted by any Requirement of Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or Canadian Pension Plan or to appoint a trustee or similar official to administer any such Foreign Plan or Canadian Pension Plan, or alleging the insolvency of any such Foreign Plan or Canadian Pension Plan, (d) the incurrence of any liability by any Loan Party or any Subsidiary under any law on account of the complete or partial termination of such Foreign Plan or Canadian Pension Plan, or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction with respect to a Foreign Plan or Canadian Pension Plan that is prohibited under any Requirement of Law and that could reasonably be expected to result in the incurrence of any material liability by any Loan Party or any Subsidiary, or the imposition on any Loan Party or any Subsidiary of any material fine, excise tax or penalty with respect to a Foreign Plan or Canadian Pension Plan resulting from any noncompliance with any Requirement of Law.
“Foreign Subsidiary” means any Subsidiary of the Parent that is not a Domestic Subsidiary.
“Funding Losses” has the meaning specified therefor in Section 2.08.
“GAAP” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting
- 27 -
principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements, provided, further, that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in Section 7.03 hereof, the Administrative Agent and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants in Section 7.03 hereof shall be calculated as if no such change in GAAP has occurred.
“Governing Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.
“Governmental Authority” means any nation or government, any foreign, Federal, state, territory, provincial, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guaranteed Obligations” has the meaning specified therefor in Section 11.01.
“Guarantor” means (a) the Parent and each Subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto, and (b) each other Person which guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the Obligations.
“Guaranty” means (a) the guaranty of each Guarantor party hereto contained in Article XI hereof (including each Guarantor that becomes a party hereto pursuant to a Joinder Agreement under Section 7.01(b)) and (b) each other guaranty, in form and substance satisfactory to the Administrative Agent, made by any other Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties guaranteeing all or part of the Obligations.
“HASCAP Program” means the Highly Affected Sectors Credit Availability Program established by the Government of Canada.
“HASCAP Indebtedness” means any loan or other financial accommodation under the HASCAP Program, provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the HASCAP Program and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements established pursuant to the HASCAP Program to incur such Indebtedness.
“Hazardous Material” means any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic or hazardous substance, hazardous waste, special waste, or solid waste or words of similar import under any Environmental Law or
- 28 -
that is otherwise regulated under or for which liability or standards of care are imposed pursuant to any Environmental Law, including, without limitation, petroleum, polychlorinated biphenyls; asbestos-containing materials, urea formaldehyde-containing materials radioactive materials and toxic mold.
“Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.
“Highest Lawful Rate” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
“Holdout Lender” has the meaning specified therefor in Section 12.02(c).
“Illegality Notice” has the meaning specified therefor in Section 2.11(b).
“Immaterial Foreign Subsidiary” means, at any time, any Foreign Subsidiary that contributed 2.5% or less of the Consolidated EBITDA and revenues, and 10.0% or less of the assets, of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered; provided, if at any time and from time to time after the Effective Date, Immaterial Foreign Subsidiaries comprise in the aggregate more than 5.0% of the Consolidated EBITDA of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered, or more than 5.0% of the revenues of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered or more than 10.0% of the consolidated assets of the Parent and its Subsidiaries as of the end of the most recently ended period for which financial statements have been delivered, then the Parent shall, not later than 30 days after the date by which financial statements for such period are required to be delivered (or such longer period as the Administrative Agent may agree in its sole discretion), designate in writing to the Administrative Agent that one or more of such Subsidiaries is no longer an Immaterial Foreign Subsidiary for purposes of this Agreement to the extent required such that the foregoing condition ceases to be true. Schedule 1.01(C) sets forth all of the Immaterial Foreign Subsidiaries of the Parent as of the Effective Date. For the avoidance of doubt, Orinter shall not constitute an Immaterial Foreign Subsidiary under this Agreement.
“Incremental Joinder” has the meaning specified therefor in Section 2.13(b)(i).
“Incremental Term Loan A” has the meaning specified therefor in Section 2.13(b).
“Incremental Term Loan A Commitments” has the meaning specified therefor in Section 2.13(a).
“Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred in the ordinary course of such Person's business and not constituting Excess
- 29 -
Payables), including, for the avoidance of doubt, Earnout Obligations; (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all obligations and liabilities, calculated on a basis satisfactory to the Administrative Agent and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer.
“Indemnified Matters” has the meaning specified therefor in Section 12.15.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified therefor in Section 12.15.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.
“Intellectual Property” has the meaning specified therefor in the applicable Security Agreement.
“Intercompany Subordination Agreement” means an Intercompany Subordination Agreement made by the Parent and its Subsidiaries in favor of the Administrative Agent for the benefit of the Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent.
“Interest Period” means, with respect to each SOFR Loan, (a) with an initial period commencing on the date of the making of such SOFR Loan (or the continuation of a SOFR Loan or the conversion of a Reference Rate Loan to a SOFR Loan) and ending 1 or 3 months thereafter, as elected by the Administrative Borrower, and (b) thereafter with a period commencing on the date of the making of such SOFR Loan (or the continuation of a SOFR Loan or the conversion of a Reference Loan to a SOFR Loan) and ending 1 or 3 months thereafter, as elected by the Administrative Borrower; provided, however, that (i) if any Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended (subject to clauses (iii)-(v) below) to the next succeeding Business Day, (ii) interest shall accrue at the applicable rate based upon the Adjusted Term SOFR from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (iii) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (iv) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no
- 30 -
numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1 or 3 months after the date on which the Interest Period began, as applicable, (v) the Borrowers may not elect an Interest Period which will end after the Final Maturity Date, and (vi) no tenor that has been removed pursuant to Section 2.07(g)(iv) shall be available for specification in such Notice of Borrowing or SOFR Notice.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Inventory” means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including, without limitation, all raw materials, work-in-process and finished goods, and all packaging, supplies and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account or cash.
“Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP.
“Joinder Agreement” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).
“Kilimanjaro Acquisition” means the acquisition by Mondee of the Kilimanjaro Acquisition Assets pursuant to the Kilimanjaro Acquisition Documents.
“Kilimanjaro Acquisition Agreement” means the Stock Purchase Agreement to be entered into by and among Mondee, as buyer, and the Kilimanjaro Sellers, as sellers.
“Kilimanjaro Acquisition Assets” means the “Purchased Shares” (as defined in the Kilimanjaro Acquisition Agreement).
“Kilimanjaro Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of the date of the closing of the Kilimanjaro Acquisition, and in form and substance satisfactory to the Administrative Agent, made by Xxxxxx in favor of the Administrative Agent.
“Kilimanjaro Acquisition Documents” means the Kilimanjaro Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
“Kilimanjaro Sellers” means, collectively, Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxx Xx. and Xxxxxxx Xxxxx.
- 31 -
“Lease” means any lease, sublease or license of, or other agreement granting a possessory interest in, real property to which any Loan Party or any of its Subsidiaries is a party as lessor, lessee, sublessor, sublessee, licensor or licensee.
“Lender” has the meaning specified therefor in the preamble hereto.
“Leverage Ratio” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) all Indebtedness of such Person and its Subsidiaries described in clauses (a), (b) (other than the Falcon Earnout Obligation, the Orinter Earnout Obligation and any Qualified Put Rights but including, for the avoidance of doubt, Excess Payables), (c), (d), (e) and (f) (but only to the extent such obligations or liabilities are actual and represent unreimbursed and uncollateralized draws in respect of letters of credit, acceptances and similar facilities rather than contingent liabilities) in the definition of “Indebtedness” hereunder as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for such period.
“Lien” means any mortgage, deed of trust, deed to secure debt, pledge, lien (statutory or otherwise), security interest, hypothec, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security.
“Liquidity” means, at any time, the result of (a) Availability at such time, plus (b) Qualified Cash at such time, minus (c) the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables.
“Loan” means any loan made by any Agent or any Lender to the Borrowers pursuant to Article II hereof.
“Loan Account” means an account maintained hereunder by each of the Administrative Agent and the Revolving Agent on its books of account at the applicable Payment Office, and with respect to the Borrowers, in which the Borrowers will be charged with all Term Loans or Revolving Loans, as applicable, made to, and all other Obligations incurred by, the Borrowers.
“Loan Document” means this Agreement, any Control Agreement, the Disbursement Letter, any Guaranty, the Intercompany Subordination Agreement, the Falcon Acquisition Collateral Assignment, the Kilimanjaro Acquisition Collateral Assignment, the Rocketrip Acquisition Collateral Assignment, the Orinter Acquisition Collateral Assignment, any Brazil Security Document, any Joinder Agreement, any Mortgage, any Security Agreement, any UCC Filing Authorization Letter, any landlord waiver, any collateral access agreement, any Perfection Certificate and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan or any other Obligation.
“Loan Party” means any Borrower and any Guarantor.
“Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities, financial condition or prospects of the Loan Parties taken as a whole, (b) the ability of the Loan Parties taken as a whole to perform any of their obligations under any Loan Document, (c) the legality, validity or enforceability of this Agreement or any other Loan Document, (d) the rights and remedies of any Agent or any Lender under any Loan Document, or (e) the validity, perfection or priority of a Lien in favor of the Administrative
- 32 -
Agent for the benefit of the Secured Parties on Collateral having a fair market value in excess of $5,000,000.
“Material Contract” means, with respect to any Loan Party, (a) each Falcon Acquisition Document, (b) each Kilimanjaro Acquisition Document, (c) each Rocketrip Acquisition Document, (d) each Orinter Acquisition Document, (e) each Specified Material Contract and the American Express Contract, (ef) each contract or agreement to which such Loan Party or any of its Subsidiaries is a party (other than a contract or agreement as to which an airline or an airline Affiliate is the counterparty) involving aggregate consideration payable to or by such Loan Party or such Subsidiary of $10,000,000 or more in any Fiscal Year (other than purchase orders in the ordinary course of the business of such Loan Party or such Subsidiary and other than contracts that by their terms may be terminated by such Loan Party or Subsidiary in the ordinary course of its business upon less than 60 days' notice without penalty or premium) and (fg) each other contract or agreement (other than a contract or agreement as to which an airline or an airline Affiliate is the counterparty) as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“Metaminds” means MetaMinds Software Solutions Limited, a corporation limited by shares organized under the laws of India.
“Mondee” means Mondee, Inc., a Delaware corporation.
“Mondee Brazil” means Mondee Brazil, LLC, a Delaware limited liability company.
“Mondee Holdings II” means Mondee Holdings II, LLC, a Delaware limited liability company.
“Moody's” means Xxxxx'x Investors Service, Inc. and any successor thereto.
“Mortgage” means a mortgage (including, without limitation, a leasehold mortgage), deed of trust or deed to secure debt, in form and substance satisfactory to the Administrative Agent, made by a Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties, securing the Obligations and delivered to the Administrative Agent.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its ERISA Affiliates has contributed, or has been obligated to contribute, to at any time during the preceding the six calendar years.
“Net Cash Proceeds” means, with respect to, any issuance or incurrence of any Indebtedness, any Equity Issuance, any Disposition or the receipt of any Extraordinary Receipts by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any Disposition or the receipt of any Extraordinary Receipts consisting of insurance proceeds or condemnation awards, the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection therewith (other than Indebtedness under this Agreement), (b) reasonable expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (c) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to
- 33 -
the extent, that the amounts so deducted are (i) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof.
“New Facility” has the meaning specified therefor in Section 7.01(m).
“Notice of Borrowing” has the meaning specified therefor in Section 2.02(a).
“Obligations” means all present and future indebtedness, obligations, and liabilities (including, without limitation, the PIK Amount) of each Loan Party to the Agents and the Lenders arising under or in connection with this Agreement or any other Loan Document, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest (including, without limitation, the PIK Amount), charges, expenses, fees, premiums (including, without limitation, the Applicable Premium), attorneys' fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (b) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or advance on behalf of such Person. Notwithstanding any of the foregoing, Obligations shall not include any Excluded Swap Obligations.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Orinter” means Orinter Viagens E Turimos S.A., a corporation enrolled at CNPJ under N. 82.170.291/0001-20, with its headquarters in the City of Blumenau, State of Santa Catarina, at Alameda Rio Xxxxxx, N. 238, 1st floor, sobreloja, ZipCode 89010-300, with its bylaws filed with JUCSC under NIRE 42300053317.
“Orinter Acquisition” means the acquisition by Mondee Brazil of the Orinter Acquisition Assets pursuant to the Orinter Acquisition Documents.
“Orinter Acquisition Agreement” means the Share Purchase and Sale Agreement, dated as of January 31, 2023, by and between Mondee Brazil, the Parent, XXX Holdings Ltda., Orinter, Xxx Xxxxx Xxxxx, Xxxx Xxxxx Xxxxx E Xxxxx, Xxxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx Dos Xxxxxx, and Xxxxxx Odinei Xxxxx.
“Orinter Acquisition Assets” means the “Shares” (as defined in the Orinter Acquisition Agreement).
“Orinter Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of January 31, 2023, and in form and substance satisfactory to the Administrative Agent, made by Mondee Brazil in favor of the Administrative Agent.
“Orinter Acquisition Conditions” means the following: (a) the Purchase Price for the Acquisition of the Orinter Acquisition Assets shall be comprised solely of Qualified Equity Interests of the Parent (and/or cash or Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted Cure Equity or used to
- 34 -
increase any basket under this Agreement)), (b) the Loans Parties shall be in compliance with clauses (a), (d), (e), (f), (h), (i) and (k) of the definition of “Permitted Acquisition”, (c) Mondee Brazil shall have executed and delivered to the Agents all agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of the Orinter Acquisition, and (d) the applicable Loan Parties and their Subsidiaries (including Orinter) shall have executed and delivered the Brazil Security Documents on or prior to the date set forth in Section 5(b) of the Amendment No. 10.
“Orinter Acquisition Documents” means the Orinter Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
“Orinter Earnout Obligations” means the Earnout Obligations contemplated to be paid pursuant to Section 4.4 of the Orinter Acquisition Agreement (as in effect on the Amendment No. 10 Effective Date), in an aggregate amount not to exceed $10,000,000 during the term of this Agreement.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.12(a)).
“Parent” has the meaning specified therefor in the preamble hereto.
“Parent Class A Units” has the meaning specified therefor in the Parent Operating Agreement.
“Parent Class B Units” has the meaning specified therefor in the Parent Operating Agreement.
“Parent Operating Agreement” means the Amended and Restated Limited Liability Company Agreement of the Parent, dated as of May 1, 2020.
“Participant Register” has the meaning specified therefor in Section 12.07(i).
“Payment Office” means the Administrative Agent's office located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, or at such other office or offices of the Administrative Agent as may be designated in writing from time to time by the Administrative Agent to each other Agent and to the Administrative Borrower and the Revolving Agent’s office located at 00000 Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, or at such other office or offices of the Revolving Agent as may be designated in writing from time to time by the Revolving Agent to each other Agent and to the Administrative Borrower.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
- 35 -
“Pension Plan” means an Employee Plan that is subject to Section 412 of the Internal Revenue Code, Section 302 of ERISA or Title IV of ERISA maintained, sponsored or contributed to, or for which there is an obligation to contribute to, by any Loan Party or any of its ERISA Affiliates at any time during the preceding six calendar years.
“Perfection Certificate” means a certificate in form and substance satisfactory to the Administrative Agent providing information with respect to the property of each Loan Party.
“Permitted Acquisition” means (x) the Rocketrip Acquisition and, (y) the Orinter Acquisition so long as the Loan Parties comply with the Orinter Acquisition Conditions and (z) any other Acquisition (including, solely with respect to the conditions set forth in clauses (b), (c), (d), (e), (i), (j), (k) and (l) below, the Kilimanjaro Acquisition) by a Loan Party or any wholly-owned Subsidiary of a Loan Party to the extent that each of the following conditions shall have been satisfied with respect to such other Acquisition:
(a)no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition;
(b)to the extent the Acquisition will be financed in whole or in part with the proceeds of any Loan, the conditions set forth in Section 5.02 shall have been satisfied;
(c)the Borrowers shall have furnished to the Administrative Agent at least 10 Business Days prior to the consummation of such Acquisition (i) an executed term sheet and/or commitment letter (setting forth in reasonable detail the terms and conditions of such Acquisition) and, at the request of the Administrative Agent, such other information and documents that the Administrative Agent may request, including, without limitation, executed counterparts of the respective agreements, instruments or other documents pursuant to which such Acquisition is to be consummated (including, without limitation, any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith, (ii) pro forma financial statements of the Parent and its Subsidiaries after the consummation of such Acquisition, (iii) a certificate of the chief financial officer of the Parent, demonstrating on a pro forma basis compliance, as at the end of the most recently ended Fiscal Quarter for which internally prepared financial statements are available, with all covenants set forth in Section 7.03 hereof after the consummation of such Acquisition, (iv)(A) if the Purchase Price with respect to such Acquisition is greater than $15,000,000 or (B) if such a report has been prepared, a quality of earnings report, prepared by a third party, with respect to the assets being acquired or the Person whose Equity Interests are being acquired, and (v) copies of such other agreements, instruments or other documents as the Administrative Agent shall reasonably request;
(d)the agreements, instruments and other documents referred to in paragraph (c) above shall provide that (i) neither the Loan Parties nor any of their Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the Seller or Sellers, or other obligation of the Seller or Sellers (except for obligations incurred in the ordinary course of business in operating the property so acquired and necessary or desirable to the continued operation of such property and except for Permitted Indebtedness), and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released);
(e)such Acquisition shall be effected in such a manner so that the acquired assets or Equity Interests are owned either by a Loan Party or a wholly-owned Subsidiary of a
- 36 -
Loan Party and, if effected by merger, amalgamation or consolidation involving a Loan Party, such Loan Party shall be the continuing or surviving Person;
(f)the Borrowers shall have Liquidity in an amount equal to or greater than $7,500,000 immediately after giving effect to the consummation of the proposed Acquisition;
(g)the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries as of the date of such Acquisition) shall not exceed 3.50 to 1.00 after giving pro forma effect to the consummation of the proposed Acquisition and any Acquired EBITDA; provided that this clause (g) shall not apply to any Acquisition with respect to which (i) the Purchase Price therefor is comprised solely of Qualified Equity Interests of the Parent (and/or cash or Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted Cure Equity or used to increase any basket under this Agreement)), (ii) any applicable put right related to such Qualified Equity Interests constitutes a Qualified Put Right and (iii) all deferred Purchase Price obligations payable in cash or Cash Equivalents (including any earnout obligation or seller debt) of the applicable Loan Parties or wholly-owned Subsidiaries of one or more Loan Parties in connection with such Acquisition only arise after the Final Maturity Date with respect to the Term Loans (such an Acquisition, a “Qualified Acquisition”);
(h)either (i) the assets being acquired or the Person whose Equity Interests are being acquired did not have negative Consolidated EBITDA (as reduced by the aggregate amount of Capital Expenditures made and related to such assets or made by such Person) during the 12 consecutive month period most recently concluded prior to the date of the proposed Acquisition or (ii) in the case of any Qualified Acquisition, the foregoing Consolidated EBITDA requirement may be calculated on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period (provided that all such addbacks shall be (A) reasonably identifiable and factually supportable, (B) set forth in reasonable detail in a certificate of an Authorized Officer of the Parent and (C) consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld));
(i)the assets being acquired (other than a de minimis amount of assets in relation to the Loan Parties' and their Subsidiaries' total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and their Subsidiaries or a business reasonably related thereto;
(j)the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States;
(k)such Acquisition shall be consensual and shall have been approved by the board of directors of the Person whose Equity Interests or assets are proposed to be acquired and shall not have been preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, Parent or any of its Subsidiaries or an Affiliate thereof;
(l)any such Subsidiary (and its equityholders) shall execute and deliver the agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of such Acquisition; and
- 37 -
(m)the Purchase Price payable in respect of (i) any single Acquisition or series of related Acquisitions shall not exceed $50,000,000 in the aggregate and (ii) all Acquisitions consummated after the Effective Date (including the proposed Acquisition but excluding, for the avoidance of doubt, the Kilimanjaro Acquisition) shall not exceed $100,000,000 in the aggregate during the term of this Agreement.
“Periodic Term SOFR Determination Day” has the meaning specified therefor in the definition of “Term SOFR”.
“Permitted Canadian Finance Facilities” means Indebtedness incurred by the Canadian Subsidiary and/or Canadian A/R Transactions entered into by the Canadian Subsidiary in an aggregate principal amount not to exceed $2,000,000 at any time outstanding.
“Permitted Cure Equity” means Qualified Equity Interests of the Parent.
“Permitted Disposition” means:
(a)sale of Inventory in the ordinary course of business;
(b)licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business;
(c)leasing or subleasing assets in the ordinary course of business;
(d)(i) the lapse of Registered Intellectual Property of the Parent and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
(e)any involuntary loss, damage or destruction of property;
(f)any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(g)so long as no Event of Default has occurred and is continuing or would result therefrom, transfers of assets (i) from the Parent or any of its Subsidiaries (other than the Borrowers) to a Loan Party (other than the Parent), and (ii) from any Subsidiary of the Parent that is not a Loan Party to any other Subsidiary of the Parent;
(h)Disposition by the Canadian Subsidiary of Canadian A/R Related Property to a financing partner or Special Purpose Subsidiary in connection with the Permitted Canadian Finance Facilities, so long as (after the Control Agreement Deadline) the Net Cash Proceeds of such Disposition are deposited by the Canadian Subsidiary into an account subject to a Control Agreement;
(i)Disposition of obsolete or worn-out equipment in the ordinary course of business; and
(j)Disposition of property or assets not otherwise permitted in clauses (a) through (h) above for cash in an aggregate amount not less than the fair market value of such property or assets;
- 38 -
provided that the Net Cash Proceeds of such Dispositions (including the proposed Disposition) (1) in the case of clauses (i) and (j) above, do not exceed $1,500,000 in the aggregate in any Fiscal Year and (2) in all cases, are paid to the Administrative Agent for the benefit of the Secured Parties to the extent required by the terms of Section 2.05(c)(ii) or applied to the extent required by the terms of Section 2.05(c)(vi).
“Permitted Holder” means Xxxxxx Xxxxxxxxxxx or any Controlled Investment Affiliate thereof.
“Permitted Indebtedness” means:
(k)any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;
(l)any other Indebtedness listed on Schedule 7.02(b), and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(m)Permitted Purchase Money Indebtedness and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(n)Permitted Intercompany Investments;
(o)Indebtedness incurred in the ordinary course of business under surety, statutory, and appeal bonds, performance bonds (including those for the benefit of airlines or industry regulatory bodies or clearing houses) or in connection with workers compensation claims;
(p)Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period;
(q)the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party's operations and not for speculative purposes;
(r)Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), merchant cards, virtual cards (including the Bank of America Shuffler Program) or other similar cash management services, in each case, incurred in the ordinary course of business;
(s)contingent liabilities in respect of any indemnification obligation, non-compete, or similar obligation of any Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions;
(t)Indebtedness incurred in the ordinary course of business with respect to letters of credit issued by other banks on a cash-collateralized or unsecured basis, in each case, for the benefit of airlines or industry regulatory bodies or clearing houses;
(u)the Falcon Earnout Obligations;
- 39 -
(v)Indebtedness of a Person whose assets or Equity Interests are acquired by the Parent or any of its Subsidiaries in a Permitted Acquisition in an aggregate amount not to exceed $2,500,000 at any time outstanding; provided, that such Indebtedness (i) is either Permitted Purchase Money Indebtedness or a Capitalized Lease with respect to equipment or mortgage financing with respect to a Facility, (ii) was in existence prior to the date of such Permitted Acquisition, and (iii) was not incurred in connection with, or in contemplation of, such Permitted Acquisition;
(w)Indebtedness under the Permitted Canadian Finance Facilities;
(x)Subordinated Indebtedness other than, for the avoidance of doubt, items in clause (k) above and clause (o) below (but including any other Earnout Obligations and Subordinated Indebtedness, in each case, incurred in connection with the consummation of one or more Permitted Acquisitions) in an aggregate principal amount for all such Subordinated Indebtedness not to exceed $5,000,000 at any time outstanding;
(y)(i) [reserved], (ii) any Qualified Put Rights and (iii) any Subordinated Indebtedness that is incurred solely to satisfy the obligations of the Loan Parties in respect of such Qualified Put Rights in an aggregate principal amount for all such Subordinated Indebtedness not to exceed the aggregate amount of the obligations of the Loan Parties arising in respect of such Qualified Put Rights upon the exercise thereof;
(z)[reserved]; the Orinter Earnout Obligations;
(aa)[reserved];
(ab)Indebtedness constituting Excess Payables;
(ac)from the Amendment No. 3 Effective Date until the SVB LC Expiration Date, Indebtedness under the SVB LC Agreement in an aggregate amount not to exceed $240,000 at any time outstanding;
(ad)from the Amendment No. 3 Effective Date until the SVB LC Expiration Date, Indebtedness under the SBV Mondee Guaranty, in an aggregate amount not to exceed $240,000 at any time outstanding; and
(ae)Indebtedness constituting CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness; in an aggregate principal amount for all such Indebtedness under this clause (u) not to exceed $10,500,000 at any time outstanding.
“Permitted Intercompany Investments” means Investments made by (a) a Loan Party to or in another Loan Party (other than the Parent), (b) a Subsidiary that is not a Loan Party to or in another Subsidiary that is not a Loan Party, (c) a Subsidiary that is not a Loan Party to or in a Loan Party, so long as, in the case of a loan or advance, the parties thereto are party to the Intercompany Subordination Agreement, (d) transactions permitted under Section 7.02(j)(v), to the extent such transactions are characterized as Investments by a Loan Party to or in a Foreign Subsidiary, and (e) a Loan Party to or in a Subsidiary (including, without limitation, a Foreign Subsidiary) that is not a Loan Party, so long as (i) the aggregate amount of all such Investments made by the Loan Parties to or in Subsidiaries that are not Loan Parties does not exceed $1,500,000 at any time outstanding, (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment, and (iii) the Borrowers shall have Liquidity in an amount equal to or greater than $7,500,000 immediately after giving effect to such Investment.
- 40 -
“Permitted Investments” means:
1.Investments in cash and Cash Equivalents;
2.Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;
3.advances made in connection with purchases of goods or services in the ordinary course of business;
4.Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;
5.Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;
6.Permitted Intercompany Investments;
7.Permitted Acquisitions;
8.[reserved];
9.so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not to exceed $2,500,000 at any time outstanding;
10.so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrowers shall have Liquidity in an amount equal to or greater than $7,500,000 both before and after giving effect thereto, and (iii) the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries on the date thereto) shall not exceed 3.00 to 1.00 after giving pro forma effect to the consummation thereof, any other Investments constituting Acquisitions; and
11.Investments for nominal consideration related to the formation and establishment of (but, for the avoidance of doubt, not any further Investment in) a Special Purpose Subsidiary.
“Permitted Liens” means:
(af)Liens securing the Obligations;
(ag)Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c)(ii);
(xx)Xxxxx imposed by law, such as carriers', warehousemen's, mechanics', materialmen's and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 30
- 41 -
days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
(ai)Liens described on Schedule 7.02(a), provided that any such Lien shall only secure the Indebtedness that it secures on the Effective Date and any Permitted Refinancing Indebtedness in respect thereof;
(aj)purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure Permitted Purchase Money Indebtedness so long as such Lien only (i) attaches to such property and (ii) secures the Indebtedness that was incurred to acquire such property or any Permitted Refinancing Indebtedness in respect thereof;
(ak)deposits and pledges of cash securing (i) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;
(al)with respect to any Facility, easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person's business;
(am)Liens of landlords and mortgagees of landlords (i) arising by statute or under any Lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;
(an)the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capitalized Lease), in each case extending only to such personal property;
(ao)non-exclusive licenses of Intellectual Property rights in the ordinary course of business;
(ap)judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(k);
(aq)rights of set-off or bankers' liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;
(ar)Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;
- 42 -
(as)Liens assumed by the Parent and its Subsidiaries in connection with a Permitted Acquisition that secure Indebtedness permitted by clause (l) of the definition of Permitted Indebtedness;
(at)Liens solely on any xxxx xxxxxxx money deposits made by any Loan Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;
(au)[reserved];
(av)Liens solely on the assets of the Canadian Subsidiary or any Canadian A/R Related Property securing the Permitted Canadian Finance Facilities;
(aw)deposits and pledges of cash securing Indebtedness permitted by clause (j) of the definition of Permitted Indebtedness; and
(ax)other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000.
“Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations) incurred to finance the acquisition of any fixed assets secured by a Lien permitted under clause (e) of the definition of “Permitted Liens”; provided that (a) such Indebtedness is incurred within 20 days after such acquisition, (b) such Indebtedness when incurred shall not exceed the purchase price of the asset financed and (c) the aggregate principal amount of all such Indebtedness shall not exceed $2,500,000 at any time outstanding.
“Permitted Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as:
(ay)after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification (other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto);
(az)such extension, refinancing or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified;
(ba)such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties and the Lenders than the terms of the Indebtedness (including, without limitation, terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced or modified; and
(bb)the Indebtedness that is extended, refinanced or modified is not recourse to any Loan Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended.
“Permitted Restricted Payments” means any of the following Restricted Payments made by:
- 43 -
(bc)any Loan Party directly or indirectly to the Parent in amounts necessary to pay taxes and other customary expenses as and when due and owing by the Parent in the ordinary course of its business as a holding company (including salaries and related reasonable and customary expenses incurred by employees of the Parent), so long as no Default or Event of Default shall have occurred and be continuing or would result from the making of such payment;
(bd)[reserved];
(be)any Loan Party to another Loan Party to the extent necessary (i) to pay Taxes with respect to the income of such first-mentioned Loan Party and/or its Subsidiaries pursuant to any consolidated, combined or unitary tax return on which such first-mentioned Loan Party is included but for which such first-mentioned Loan Party is not the common parent and (ii) to pay Taxes imposed on such second-mentioned Loan Party under the anti-deferral provisions of the Code;
(bf)any Subsidiary of any Borrower to such Borrower;
(bg)the Parent to pay non-cash (payment-in-kind) dividends in the form of common Equity Interests; and
(bh)the Parent to make the payments to consummate the Repurchase of Warrants (as defined in Amendment No. 8), so long as on or prior to the date that is the later of (a) January 20, 2023 and (b) one (1) Business Day after the consummation of the sale and issuance of 25,000 additional shares of Series A Preferred Stock in the aggregate as part of the Additional Series A Preferred Stock Issuance (as defined in Amendment No. 8), the Parent, or one or more of its designees, has repurchased from the Lenders, on a pro rata basis, party hereto (each, a “Unitholder”) not less than 50,000 of the shares of Class A common stock of the Parent at $10/per share (or if Mondee Holdings, LLC, a Delaware limited liability company (“Mondee Holdings”) has not yet distributed, transferred, assigned and delivered to each Unitholder the shares of Class A common stock of the Parent, pursuant to executed Redemption Agreements, entered into by and between Mondee Holdings and each Unitholder, each in form and substance satisfactory to the Unitholders, then the Parent, or one or more of its designees has repurchased from the Unitholders, on a pro rata basis, not less than 153,846.16 of the Class G Units of Mondee Holdings issued on July 18, 2022 at $3.25/per share); provided, that the aggregate amount of such Permitted Restricted Payments pursuant to this clause (f) shall not exceed $8,058,365.25 $8,058,365.25; and
(bi)the Parent to pay the Orinter Earnout Obligations to be paid pursuant to the terms of the Orinter Acquisition Documents (as in effect on the Amendment No. 10 Effective Date), so long as (i) such payment in respect of the Orinter Earnout Obligations is made solely in the form of Qualified Equity Interests of the Parent (and/or cash of Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted Cure Equity or used to increase any basket under this Agreement)), (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to the payment of such Orinter Earnout Obligations, (iii) the Borrowers shall have Liquidity in an amount equal to or greater than $7,500,000 immediately before and after giving effect to the payment of such Orinter Earnout Obligations, (iv) the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries on the date thereto) shall not exceed 3.50 to 1.00 after giving
- 44 -
pro forma effect to the payment of such Orinter Earnout Obligations and (v) the Administrative Agent shall have received a certificate of the chief financial officer of the Parent certifying as to the matters set forth in this clause (g), together with reasonably detailed calculations demonstrating compliance with subclauses (i), (iii), and (iv) of this clause (g), in form and substance satisfactory to the Administrative Agent.
“Permitted Specified Liens” means Permitted Liens described in clauses (a), (b) and (c) of the definition of Permitted Liens, and, solely in the case of Section 7.01(b)(i), including clauses (g), (h), (i) and (p) of the definition of Permitted Liens.
“Person” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.
“Xxxxx Cash Accounts” means Cash Management Accounts with deposits at any time in an aggregate amount not in excess of $10,000 for any one account and $50,000 in the aggregate for all such accounts.
“PIK Amount” means, as of any date of determination, the amount of all interest accrued with respect to the Loans that has been paid in kind by being added to the balance thereof in accordance with Section 2.04(b).
“Post-Default Rate” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.00%.
“PPSA” means the Personal Property Security Act (Ontario), the Civil Code of Quebec or any other applicable Canadian federal or provincial statute pertaining to the granting, perfection, priority or ranking of security interests, liens or hypothecs on personal property, and any successor statutes, together with any regulations thereunder, in each case, as in effect from time to time. References to sections of the PPSA shall be construed to also refer to any successor statutes.
“Pro Rata Share” means, with respect to:
(bj)a Lender's obligation to make Revolving Loans and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (i) such Xxxxxx's Revolving Credit Commitment, by (ii) the Total Revolving Credit Commitment, provided that, if the Total Revolving Credit Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender's Revolving Loans (including Agent Advances) and the denominator shall be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances),
(bk)(i) with respect to a Lender’s obligation to make the Term Loan A and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (A) such Lender’s Term Loan A Commitment, by (B) the Total Term Loan A Commitment, provided that if the Total Term Loan A Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loan A and the denominator shall be the aggregate unpaid principal amount of the Term Loan A, and (ii) with respect to a Lender’s obligation to make the Term Loan B and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (A) such Lender’s Term Loan B Commitment, by (B) the Total Term Loan B Commitment, provided that if the Total Term Loan B Commitment has been reduced to zero, the
- 45 -
numerator shall be the aggregate unpaid principal amount of such Xxxxxx’s portion of the Term Loan B and the denominator shall be the aggregate unpaid principal amount of the Term Loan B, and
(bl)all other matters (including, without limitation, the indemnification obligations arising under Section 10.05), the percentage obtained by dividing (i) the sum of such (A) Lender's Revolving Credit Commitment, (B) such Lender's Term Loan Commitment and (C) the unpaid principal amount of such Lender's portion of the Term Loans, by (ii) the sum of (a) the Total Revolving Credit Commitment, (B) the Total Term Loan Commitment and (C) the aggregate unpaid principal amount of the Term Loans, provided, that, if such Lender's Revolving Credit Commitment shall have been reduced to zero, such Xxxxxx's Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of such Xxxxxx's Revolving Loans (including Agent Advances) and if the Total Revolving Credit Commitment shall have been reduced to zero, the Total Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances).
“Projections” means financial projections of the Parent and its Subsidiaries delivered pursuant to Section 6.01(g)(ii), as updated from time to time pursuant to Section 7.01(a)(vii).
“Purchase Price” means, with respect to any Acquisition, an amount equal to the sum of (a) the aggregate consideration, whether cash, property or securities (including, without limitation, the fair market value of any Equity Interests of any Loan Party or any of its Subsidiaries issued in connection with such Acquisition), paid or delivered by a Loan Party or any of its Subsidiaries (whether as initial consideration or through the payment or disposition of deferred consideration, including, without limitation, in the form of Earnout Obligations, seller financing, royalty payments, payments allocated towards non-compete covenants, payments to principals for consulting services or other similar payments) in connection with such Acquisition, plus (b) the aggregate amount of liabilities of the acquired business (net of current assets of the acquired business) that would be reflected on a balance sheet (if such were to be prepared) of the Parent and its Subsidiaries after giving effect to such Acquisition, plus (c) the aggregate amount of all transaction fees, costs and expenses incurred by the Parent or any of its Subsidiaries in connection with such Acquisition.
“Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash on-hand of the Loan Parties maintained in deposit accounts in the name of a Loan Party in the United States as of such date, and if such date is after the Control Agreement Deadline, such deposit accounts are subject to Control Agreements.
“Qualified Equity Interests” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.
“Qualified Put Right” means any put right related to Qualified Equity Interests of the Parent with respect to which the closing of such put right, and all related payment obligations of the issuer thereof to the Person exercising such put right, may only occur or otherwise be payable after the Final Maturity Date with respect to the Term Loans.
“Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each Facility, each in form and substance reasonably satisfactory to the Administrative Agent:
(bm)a Mortgage duly executed by the applicable Loan Party,
- 46 -
(bn)evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Secured Parties thereunder;
(bo)a Title Insurance Policy with respect to each Mortgage;
(bp)a current ALTA survey (or local equivalent) and a surveyor's certificate, certified to the Administrative Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state, province or territory in which such Facility is located and reasonably satisfactory to the Administrative Agent;
(bq)in the case of a leasehold interest, (i) a certified copy of the Lease between the landlord and such Person with respect to such real property in which such Person has a leasehold interest, and the certificate of occupancy with respect thereto, and (ii) an attornment and nondisturbance agreement between the landlord (and any fee mortgagee) and the applicable Loan Party with respect to such leasehold interest and the Administrative Agent;
(br)a zoning report issued by a provider reasonably satisfactory to the Administrative Agent or a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility's compliance with all applicable Requirements of Law, together with a copy of all certificates of occupancy issued with respect to each Facility;
(bs)an opinion of counsel, satisfactory to the Administrative Agent, in the state, province, territory or other equivalent jurisdiction where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Administrative Agent may reasonably request;
(bt)an ASTM 1527-13 Phase I Environmental Site Assessment (“Phase I ESA”) (and if reasonably requested by the Administrative Agent based upon the results of such Phase I, a Phase II Environmental Site Assessment), by an independent firm reasonably satisfactory to the Administrative Agent; and
(bu)such other agreements, instruments, appraisals and other documents (including guarantees and opinions of counsel) as the Administrative Agent may reasonably require.
“Recipient” means any Agent and any Lender, as applicable.
“Redesignated Term Loan A” has the meaning specified therefor in Section 2.01(a)(ii).
“Redesignated Term Loan B” has the meaning specified therefor in Section 2.01(a)(ii).
“Redesignated Term Loans” means collectively, the Redesignated Term Loan A and the Redesignated Term Loan B.
“Reference Rate” means, for any period, the greatest of (a) 2.75% per annum, (b) the Federal Funds Rate plus 0.50% per annum, (c) Adjusted Term SOFR for a one-month tenor in effect two (2) U.S. Government Securities Business Days prior to the date of such determination plus 1.00% per annum, and (d) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
- 47 -
Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.
“Reference Rate Loan” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.
“Reference Rate Term SOFR Determination Day” has the meaning specified therefor in the definition of “Term SOFR”.
“Register” has the meaning specified therefor in Section 12.07(f).
“Registered Intellectual Property” means Intellectual Property that is issued, registered, renewed or the subject of a pending application.
“Regulation T”, “Regulation U” and “Regulation X” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.
“Related Fund” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the direct and indirect equityholders, partners, directors, officers, employees, agents, consultants, trustees, administrators, managers, advisors, and representatives of such Person and of such Person’s Affiliates.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Remedial Action” means any action (a) to correct or address any actual, alleged or threatened non-compliance with any Environmental Law or Environmental Permit, or (b) to clean up, remove, remediate, contain, treat, monitor, assess, evaluate, investigate, prevent, minimize or in any other way address any environmental condition or the presence, Release or threatened Release of any Hazardous Material (including the performance of pre-remedial studies and investigations and post-remedial operation and maintenance activities).
“Replacement Lender” has the meaning specified therefor in Section 12.02(c)
“Reportable Event” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30-day notice to the PBGC under the regulations promulgated under such Section).
- 48 -
“Required Lenders” means Lenders whose Pro Rata Shares (calculated in accordance with clause (c) of the definition thereof) aggregate at least 50.1%.
“Required Revolving Loan Lenders” means Revolving Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (a) of the definition thereof) aggregate at least 50.1%.
“Required Term Loan Lenders” means Term Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (b) of the definition thereof) aggregate at least 50.1%.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, territorial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, orders-in-council, 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 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 subject.
“Restricted Payment” means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, together with any payment or distribution pursuant to a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, (b) the making of any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (c) the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party, now or hereafter outstanding, (d) the return of any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (e) the payment of any management, consulting, monitoring or advisory fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting, monitoring, advisory or other services agreement to any of the shareholders or other equityholders of any Loan Party or any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party.
“Revolving Agent” has the meaning specified therefor in the preamble hereto.
“Revolving Agent’s Account” means an account at a bank designated by the Revolving Agent from time to time as the account into which the Loan Parties shall make certain payments to the Revolving Agent for the benefit of the Revolving Loan Lenders under this Agreement and the other Loan Documents.
“Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers in the amount set forth opposite such Xxxxxx's name in Schedule 1.01(A)(iv) hereto or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amount may be terminated or reduced from time to time in accordance with the terms of this Agreement.
- 49 -
“Revolving Credit Commitment Termination Date” means the earlier to occur of (a) the date the Revolving Credit Commitments are permanently reduced to zero pursuant to Section 2.01(b) and (b) the date of the termination of the Revolving Credit Commitments pursuant to Section 9.01.
“Revolving Loan” means a loan made by a Lender to the Borrowers pursuant to Section 2.01(a)(i).
“Revolving Loan Lender” means a Lender with a Revolving Credit Commitment or a Revolving Loan.
“Revolving Loan Obligations” means any Obligations with respect to the Revolving Loans (including without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).
“Rocketrip Acquisition” means the acquisition by Mondee of the Rocketrip Acquisition Assets pursuant to the Rocketrip Acquisition Documents.
“Rocketrip Acquisition Agreement” means the Agreement and Plan of Merger, dated as of September 3, 2020, by and between Mondee, Mondee Merger Sub, Inc., Rocketrip, Inc., the Parent and Fortis Advisors.
“Rocketrip Acquisition Assets” means the “Shares” (as defined in the Rocketrip Acquisition Agreement).
“Rocketrip Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of September 3, 2020, and in form and substance satisfactory to the Administrative Agent, made by Xxxxxx in favor of the Administrative Agent.
“Rocketrip Acquisition Documents” means the Rocketrip Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
“Sabre Contract” means that certain Customer Agreement, dated as of November 1, 2015, by and among Sabre GLBL Inc. and Mondee.
“Sale and Leaseback Transaction” means, with respect to the Parent or any of its Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Parent or any of its Subsidiaries shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanctioned Country” means, at any time, a country or territory that is itself the subject or target of comprehensive Sanctions (which, as of the Effective Date, include Crimea, Cuba, Iran, North Korea, and Syria).
“Sanctioned Person” means, at any time, any Person (a) listed in OFAC's Specially Designated Nationals and Blocked Persons List, OFAC's Sectoral Sanctions Identification List, and any other Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty's Treasury of the United Kingdom, Canada, or other relevant sanctions authority that require blocking, asset freezes, rejection, prohibition or other similar actions with respect to designated Persons, (b) a Person that resides, is organized or located in or has a place of business
- 50 -
in a Sanctioned Country or a country or territory that is subject to a call for counter-measures or designated a “Non-Cooperative Country or Territory” by the Financial Action Task Force on Money Laundering, or whose funds are transferred from or through such a jurisdiction (a “Sanction Target”), (c) any Person with whom or with which a U.S. Person is prohibited from dealing under any of the Sanctions, or (d) any Person owned 50% or more, directly or indirectly, individually or in the aggregate by, or controlled by, any Person or Persons described in clauses (a) or (b).
“Sanctions” means Requirements of Law concerning or relating to economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by OFAC, the U.S. Department of State, the government of Canada, the European Union, or Her Majesty's Treasury of the United Kingdom, or other relevant sanctions authority.
“SBA” means the U.S. Small Business Administration.
“SEC” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.
“Secured Party” means any Agent and any Lender, and “Secured Parties” means the Agents and the Lenders.
“Securities Act” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.
“Securitization” has the meaning specified therefor in Section 12.07(l).
“Security Agreement” means a Pledge and Security Agreement (including the Canadian Security Agreement), in form and substance satisfactory to the Administrative Agent, made by a Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties securing the Obligations.
“Seller” means any Person that sells Equity Interests or other property or assets to a Loan Party or a Subsidiary of a Loan Party in a Permitted Acquisition.
“Settlement Period” has the meaning specified therefor in Section 2.02(d)(i).
“Small Business Act” means the Small Business Act (15 U.S. Code Chapter 14A – Aid to Small Business).
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any borrowing, the SOFR Loans comprising such Loans.
“SOFR Deadline” has the meaning specified therefor in Section 2.07(a).
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Reference Rate”.
- 51 -
“SOFR Notice” means a written notice substantially in the form of Exhibit D.
“SOFR Option” has the meaning specified therefor in Section 2.07(a).
“Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is not less than the total amount of the liabilities of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute unreasonably small capital.
“SPAC Effective Date” has the meaning specified therefor in the definition of “Applicable Premium”.
“SPAC Prepayment Amount” has the meaning specified therefor in Section 5 of Amendment No. 7.
“SPAC Prepayment Notice” has the meaning specified therefor in Section 2.05(b)(ii).
“SPAC Restructuring” means the transactions set forth in that certain Business Combination Agreement, dated as of December 20, 2021 (the “Business Combination Agreement”), pursuant to which Mondee Holdings II, Inc., a Delaware corporation shall effectuate certain restructuring transactions with the ITHAX Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability (“Ithax”), Ithax Sub I, LLC, a Delaware limited liability company and wholly owned subsidiary of Ithax (“Merger Sub I”), and Ithax Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Ithax (“Merger Sub II”), as follows: (a) Ithax shall domesticate as a Delaware corporation, as more fully described in the Business Combination Agreement (the “Domestication”, and Ithax after the Domestication shall be hereinafter referred to as “New Mondee”), (b) Merger Sub I will merge with and into Holdings II, with Holdings II surviving such merger as a wholly owned subsidiary of New Mondee (the “First Merger”), (c) immediately following the First Merger, Holdings II shall merge with and into Merger Sub II, with Merger Sub II surviving such merger as a wholly owned subsidiary of New Mondee (the “Second Merger”, and together with the First Merger, the “Mergers”), (d) New Mondee will change its name to “Mondee Holdings, Inc.”, a Delaware corporation (“New Parent”), (e) Merger Sub II will change its name to “Mondee Holdings II, LLC”, a Delaware limited liability company (“New Mondee Holdings II”), and (f) Mondee Holdings, LLC will distribute the shares of “Mondee Holdings, Inc.” received in connection with the consummation of the Business Combination Agreement to its members in accordance with the procedures adopted by the Board of Managers of Mondee Holdings, LLC and, following the full distribution of such shares of “Mondee Holdings, Inc.”, dissolve, so that after giving effect thereto, (i) New Parent owns 100% of New Mondee Holdings II and (ii) New Mondee Holdings II owns 100% of Mondee, Inc..
“Special Purpose Subsidiary” means any Subsidiary or Affiliate of the Canadian Subsidiary formed for the purpose of and that solely engages in one or more Canadian A/R Transactions.
- 52 -
“Specified Material Contracts” means, collectively, the Amadeus Contract, the Sabre Contract and the TravelPort Contract.
“Standard & Poor's” means Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc. and any successor thereto.
“Subordinated Indebtedness” means Indebtedness (including Earnout Obligations) of any Loan Party the terms of which (including, without limitation, payment terms, interest rates, covenants, remedies, defaults and other material terms) are satisfactory to the Administrative Agent and the Required Lenders and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (a) by the execution and delivery of a subordination agreement, in form and substance satisfactory to the Required Lenders, or (b) otherwise on terms and conditions satisfactory to the Required Lenders.
“Subsidiary” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person's consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person. References to a Subsidiary shall mean a Subsidiary of the Parent unless the context expressly provides otherwise.
“SVB” means Silicon Valley Bank.
“SVB LC Agreement” means that certain Application and Agreement for Standby Letter of Credit dated as of April __, 2016, pursuant to which SVB issued Irrevocable Standby Letter of Credit Xx. XXXXX00000, dated on or about April 7, 2016, in each case, as in effect on the Amendment No. 3 Effective Date.
“SVB LC Expiration Date” means August 31, 2021.
“SVB Mondee Guaranty” means that certain Unconditional Guaranty dated September 3, 2020, by Xxxxxx in favor of SVB with respect to the SVB LC Agreement, as in effect on the Amendment No. 3 Effective Date.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“TCW” has the meaning specified therefor in the preamble hereto.
“Term Loan” means, individually and collectively, the Term Loan A and the Term Loan B, as the context requires, each made by the Term Loan Lenders to the Borrowers pursuant to Section 2.01(a)(ii), Section 2.01(a)(iii) and Section 2.13, including, without
- 53 -
limitation, the aggregate amount of the PIK Amount paid to the Lenders pursuant to Section 2.04(b).
“Term Loan A” means, collectively, the portion of the Existing Term Loans redesignated as the Redesignated Term Loan A pursuant to Section 2.01(a)(ii) hereto, the Amendment No. 9 Term Loan and any Incremental Term Loan A made by the Term Loan A Lenders pursuant to Section 2.13 hereof. The aggregate principal amount of the Term Loan A as of the Amendment No. 9 Effective Date (and after giving effect to the funding of the Amendment No. 9 Term Loan) is $30,000,000.
“Term Loan A Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loan A to the Borrowers on the Amendment No. 9 Effective Date in the amount set forth in Schedule 1.01(A)(iii) hereto or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. The Term Loan A Commitment as of the Amendment No. 9 Effective Date is $15,000,000.
“Term Loan A Lender” means a Lender with a Term Loan A Commitment or a Term Loan A.
“Term Loan A Obligations” means any Obligations with respect to the Term Loan A (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).
“Term Loan B” means, collectively, the portion of the Existing Term Loans redesignated as the Redesignated Term Loan B pursuant to Section 2.01(a)(ii) hereof. The aggregate principal amount of the Term Loan B as of the Amendment No. 9 Effective Date is $137,752,696.40.
“Term Loan B Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loan B to the Borrowers in the aggregate amount extended prior to the Amendment No. 9 Effective Date or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. The Term Loan B Commitment as of the Amendment No. 9 Effective Date is $0.
“Term Loan B Lender” means a Lender with a Term Loan B Commitment or a Term Loan B.
“Term Loan B Obligations” means any Obligations with respect to the Term Loan B (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).
“Term Loan Commitment” means, individually and collectively, the Term Loan A Commitment and the Term Loan B Commitment, as the context requires, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement (it being understood and agreed that the commitment of such Lender to make Loans and the unused Term Loan Commitment of such Lender shall not be reduced by the amount of the PIK Amount).
“Term Loan Commitment Termination Date” means the earliest to occur of (a) the Amendment No. 9 Effective Date, (b) the date the Term Loan Commitments are permanently reduced to zero pursuant to 2.01(b) and (c) the date of the termination of the Term Loan Commitments pursuant to Section 9.01.
- 54 -
“Term Loan Lender” means a Lender with a Term Loan Commitment or a Term Loan.
“Term Loan Obligations” means any Obligations with respect to the Term Loans (including, without limitation, the principal thereof, the interest thereon, the fees and expenses specifically related thereto, and the aggregate amount of the PIK Amount paid to the Lenders pursuant to Section 2.04(b)).
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Reference Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Reference Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Reference Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Reference Rate SOFR Determination Day;
provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Adjustment” means, for any calculation with respect to a Reference Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Interest Period therefor:
Interest Period | Percentage | ||||
One month | 0.11448% | ||||
Three months | 0.26161% |
- 55 -
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the first date on which all of the Obligations are paid in full in cash and the Commitments of the Lenders are terminated.
“Title Insurance Policy” means a mortgagee's loan policy, in form and substance satisfactory to the Administrative Agent, together with all endorsements made from time to time thereto, issued to the Administrative Agent by or on behalf of a title insurance company selected by or otherwise satisfactory to the Administrative Agent, insuring the Lien created by a Mortgage in an amount and on terms and with such endorsements satisfactory to the Administrative Agent, delivered to the Administrative Agent.
“Total Commitment” means the sum of the Total Revolving Credit Commitment and the Total Term Loan Commitment.
“Total Revolving Credit Commitment” means the sum of the amounts of the Lenders' Revolving Credit Commitments.
“Total Term Loan A Commitment” means the sum of the amounts of the Lenders’ Term Loan A Commitments.
“Total Term Loan B Commitment” means the sum of the amounts of the Lenders’ Term Loan B Commitments.
“Total Term Loan Commitment” means the sum of the amounts of the Lenders’ Term Loan A Commitments and Term Loan B Commitments and the Incremental Term Loan A Commitments.
“TravelPort Contract” means that certain Subscriber Agreement, dated as of May 20, 2019, by and between TravelPort LP and Mondee.
“Treasury Rate” means, with respect to any prepayment, a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Administrative Agent on the date 3 Business Days prior to the date of such prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term of not greater than 12 months.
“UCC Filing Authorization Letter” means a letter duly executed by each Loan Party authorizing the Administrative Agent to file appropriate financing statements on Form UCC-1 without the signature of such Loan Party in such office or offices as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interests purported to be created by each Security Agreement and each Mortgage.
“Unadjusted Acquired EBITDA” means, with respect to any Unadjusted Acquired Entity or Business for any period, the amount for such period of Unadjusted EBITDA of such Unadjusted Acquired Entity or Business (determined in accordance with the definition of “Unadjusted EBITDA”).
- 56 -
“Unadjusted Acquired Entity or Business” has the meaning specified therefor in the definition of “Unadjusted EBITDA.”
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unadjusted EBITDA” means, with respect to any Person for any period:
(a) the Consolidated Net Income of such Person for such period,
plus
(b) without duplication, the sum of the following amounts for such period to the extent deducted in the calculation of Consolidated Net Income for such period:
(i) any provision for United States federal income taxes or other taxes measured by net income,
(ii) Consolidated Net Interest Expense,
(iii) any depreciation and amortization expense,
(iv) any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and
(v) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory),
minus
(c) without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:
(i) any credit for United States federal income taxes or other taxes measured by net income,
(ii) any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,
(iii) any gain from extraordinary, unusual or non-recurring items, and
(iv) any other non-cash gain;
in each case, determined on a consolidated basis in accordance with GAAP.
Notwithstanding the foregoing:
(i)for purposes of calculating the Unadjusted EBITDA of the Parent and its Subsidiaries for any period, the Unadjusted EBITDA of the Foreign Subsidiaries of the Parent that are not Loan Parties in an amount in excess of the Unadjusted Foreign EBITDA Contribution Amount shall be disregarded for all purposes with respect to such calculation of the Unadjusted EBITDA of the Parent and its Subsidiaries for such period, and
- 57 -
(ii)there shall be included in determining Unadjusted EBITDA for any period, without duplication, the Unadjusted Acquired EBITDA of any Person, property, business or asset acquired by the Parent or any of its Subsidiaries during such period to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Unadjusted Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Unadjusted Acquired Entity or Business”) based on the Unadjusted Acquired EBITDA of such Unadjusted Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period.
“Unadjusted Foreign EBITDA Contribution Amount” means, for any period, an amount (not less than zero) equal to the lesser of (a) 2.5% of Unadjusted EBITDA of the Parent and its Subsidiaries for such period (to the extent Unadjusted EBITDA is a positive number) and (b) $1,000,000.
“Uniform Commercial Code” or “UCC” has the meaning specified therefor in Section 1.04.
“Unused Revolving Credit Commitment Fee” has the meaning specified therefor in Section 2.06(b).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001)) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“WARN” has the meaning specified therefor in Section 6.01(p).
“Warrants” means the MS Units issued pursuant to the MS Units Purchase Agreement, dated as of November 10, 2017 and the MS Units Purchase Agreement, dated as of August 8, 2018, each among the Parent, NH Expansion Credit Fund Holdings LP and North Haven Credit Partners II L.P.
“Withholding Agent” means any Loan Party and any Agent.
“Working Capital” means, at any date of determination thereof, (a) the sum, for any Person and its Subsidiaries, of (i) the unpaid face amount of all accounts receivable of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of prepaid expenses and other current assets of such Person and its Subsidiaries as at such date of determination (other than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person), minus (b) the sum, for such Person and its Subsidiaries, of (i) the unpaid amount of all accounts payable of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of all accrued expenses and other
- 58 -
current liabilities of such Person and its Subsidiaries as at such date of determination (other than the current portion of long-term debt and the current portion of all accrued interest and taxes).
B.Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
C.Certain Matters of Construction. References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the requisite Lenders under Section 12.02. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge of a senior officer of any Loan Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged in good faith and diligent performance of such officer's duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.
D.Accounting and Other Terms.
- 59 -
1.Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP. For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 7.01, Section 7.02 and Section 7.03, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time). Notwithstanding the foregoing, (i) with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 840 on the definitions and covenants herein, GAAP as in effect on the Effective Date shall be applied and (ii) for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
2.All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “Uniform Commercial Code” or the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Administrative Agent may otherwise determine. Without limiting the generality of the foregoing, any term defined in this Agreement by reference to the “Uniform Commercial Code” with respect to any Canadian Loan Party or Canadian Collateral shall also have any extended, alternative or analogous meaning given to such term in the applicable PPSA and other laws (including, without limitation, the Bills of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), in all cases for the extension, preservation or betterment of the security and rights of the Collateral, (ii) all references in this Agreement to Article 7, Article 8 or Article 9 shall be deemed to refer also to applicable Canadian securities transfer laws including the Securities Transfer Act, 2006 (Ontario), as amended from time to time, (iii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under the applicable PPSA, including, without limitation, where applicable, financing change statements, (iv) all references to the United States, or to any subdivision, department, agency or instrumentality thereof shall be deemed to refer also to Canada, or to any subdivision, department, agency or instrumentality thereof, (v) all references in this Agreement to the United States Copyright Office or the United States Patent and Trademark Office shall be deemed to refer also to the Canadian Intellectual Property Office, (vi) all references to federal or state securities law of the United States shall be deemed to refer also to analogous federal and provincial securities laws in Canada, and (vii) all references to “state or federal bankruptcy laws”
- 60 -
shall be deemed to refer also to any insolvency proceeding occurring in Canada or under Canadian federal, provincial or territorial law.
E.Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day.
F.SPAC Restructuring. Upon the consummation of the SPAC Restructuring on or about the Amendment No. 7 Effective Date (a) references in the Financing Agreement and the other Loan Documents to (i) Mondee Holdings, LLC as the “Parent” shall be replaced with Mondee Holdings, Inc. as the “Parent” and (ii) Mondee Holdings II, Inc. as “Mondee Holdings II” shall be replaced with Mondee Holdings II, LLC as “Mondee Holdings II”, and (b) Mondee Holdings, LLC shall no longer be liable for any Loans or other Obligations under the Loan Documents and the Administrative Agent shall release any Lien granted to or held by the Administrative Agent upon any Collateral of Mondee Holdings, LLC and file UCC 3 termination statements for all UCC-1 financing statements and other applicable termination statements in applicable jurisdictions filed by the Administrative Agent with respect to Mondee Holdings, LLC.
G.Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Reference Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Reference Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of the Reference Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Reference Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
II.
THE LOANS
THE LOANS
A.Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth:
- 61 -
(a)Each Revolving Loan Lender severally agrees to make Revolving Loans to the Borrowers at any time and from time to time until the Revolving Credit Commitment Termination Date, in an aggregate principal amount of Revolving Loans at any time outstanding not to exceed the amount of such Xxxxxx's Revolving Credit Commitment.
(b)Prior to the Amendment No. 9 Effective Date, certain Lenders made term loans to the Borrowers (or purchased term loans pursuant to an Assignment and Acceptance), the outstanding principal amount of which as of the Amendment No. 9 Effective Date is set forth opposite the name of such Lender on Schedule 1.01(A)(i) (collectively, the “Existing Term Loans”). On the Amendment No. 9 Effective Date: (A) an aggregate principal amount of the Existing Term Loans in the amount of $15,000,000 (collectively, the “Redesignated Term Loan A”) shall become a portion of the “Term Loan A” outstanding under, and subject to the terms and conditions of, this Agreement and (B) an aggregate principal amount of the Existing Term Loans in the amount of $137,752,696.40, shall become the “Term Loan B” outstanding under, and subject to the terms and conditions of, this Agreement (collectively, the “Redesignated Term Loan B” and together with the Redesignated Term Loan A, the “Redesignated Term Loans”). Each Lender set forth on Schedule 1.01(A)(ii) shall be deemed to have made Redesignated Term Loans to the Borrowers in the amounts set forth opposite the name of such Lender on Schedule 1.01(A)(ii).
(c)Each Amendment No. 9 Term Loan Lender severally agrees to make the Amendment No. 9 Term Loan to the Borrowers on the Amendment No. 9 Effective Date in an aggregate principal amount not to exceed the amount of such Xxxxxx's Amendment No. 9 Term Loan Commitment as set forth opposite the name of such Lender on Schedule 1.01(A)(iii).
(d)After giving effect to the transactions described in clauses (ii) and (iii) above, (A) the Redesignated Term Loan A and the Amendment No. 9 Term Loan shall, from and after the Amendment No. 9 Effective Date, collectively constitute the Term Loan A for all purposes under this Agreement and each other Loan Document and (B) the Redesignated Term Loan B shall, from and after the Amendment No. 9 Effective Date, collectively constitute the Term Loan B for all purposes under this Agreement and each other Loan Document.
(e)Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.
1.Notwithstanding the foregoing:
(a)The aggregate principal amount of Revolving Loans outstanding at any time during the period from the Effective Date until the Revolving Credit Commitment Termination Date shall not exceed the Total Revolving Credit Commitment. The Revolving Credit Commitment of each Lender shall automatically and permanently be reduced to zero on the Final Maturity Date. Within the foregoing limits, the Borrowers may borrow, repay and reborrow, the Revolving Loans after the Effective Date and prior to the Revolving Credit Commitment Termination Date, subject to the terms, provisions and limitations set forth herein. No Revolving Loans shall be advanced on the Effective Date.
(b)The Total Term Loan Commitment shall be permanently reduced immediately and without further action upon the making of each Term Loan in an aggregate amount equal to the aggregate amount of such Term Loan. Each Term Loan Lender's Term Loan Commitment shall be permanently reduced immediately and without further action upon the making of each Term Loan in an amount equal to the amount of such Term Loan Lender's Pro Rata Share of such Term Loan. The Total Term Loan Commitment and each Term Loan
- 62 -
Xxxxxx's Term Loan Commitment shall terminate immediately and without further action on the Term Loan Commitment Termination Date.
B.Making the Loans.
(a) The Administrative Borrower shall give the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) (with a copy to the Administrative Agent) prior written notice (in substantially the form of Exhibit C hereto (a “Notice of Borrowing”)), not later than 12:00 noon (New York City time) on the date which is 5 Business Days prior to the date of the proposed Loan (or such shorter period as the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, which, with respect to the Amendment No. 9 Term Loan to be made on the Amendment No. 9 Effective Date, shall be in the amount of $15,000,000, (ii) whether the Loan is requested to be a Reference Rate Loan or a SOFR Loan and, in the case of a SOFR Loan, the initial Interest Period with respect thereto, (iii) the use of the proceeds of such proposed Loan, (iv) the proposed borrowing date, which must be a Business Day, and, with respect to the initial Term Loan, must be the Effective Date, and (v) the wire instructions of the Administrative Borrower's account or any other designated account(s) to which funds are to be disbursed. Promptly following receipt of a Notice of Borrowing, the applicable Agent shall notify each Lender of its pro rata share of such Loan. Each Lender shall thereafter make its Pro Rata Share of the Loan available to the applicable Agent, in immediately available funds, in the Revolving Agent's Account (in the case of Revolving Loans) or the Administrative Agent’s Account (in the case of Term Loans) no later than 12:00 noon (New York City time) on the date of the proposed Loan. Upon receipt of all requested funds, the applicable Agent will make the proceeds of such Loan available to the Administrative Borrower on the day of the proposed Loan by causing an amount, in immediately available funds to be deposited in an account designated by the Administrative Borrower in the applicable Notice of Borrowing. The Agents and the Lenders may act without liability upon the basis of written notice believed by the Agents (or either of them) in good faith to be from the Administrative Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Administrative Borrower to the Agents (or either of them)). Each Borrower hereby waives the right to dispute any Agent's record of the terms of any such Notice of Borrowing. Each Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrowers until such Agent receives written notice to the contrary. The Agents and the Lenders shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith. Each Revolving Loan shall be made (i) in a minimum amount of $1,000,000 and shall be in an integral multiple of $250,000 and (ii) not more than 1 time each week.
(c) (i) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Total Revolving Credit Commitment or the Total Term Loan Commitment, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Xxxxxx's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
- 63 -
(c)Notwithstanding any other provision of this Agreement, and in order to reduce the number of fund transfers among the Borrowers, the Agents and the Lenders, the Borrowers, the Agents and the Lenders agree that the Revolving Agent may (but shall not be obligated to), and the Borrowers and the Lenders hereby irrevocably authorize the Revolving Agent to, fund, on behalf of the Revolving Loan Lenders, Revolving Loans pursuant to Section 2.01, subject to the procedures for settlement set forth in Section 2.02(d); provided, however, that (A) the Revolving Agent shall in no event fund any such Revolving Loans if the Revolving Agent shall have received written notice from the Administrative Agent or the Required Revolving Loan Lenders on the Business Day prior to the date of the proposed Revolving Loan that one or more of the conditions precedent contained in Section 5.02 will not be satisfied at the time of the proposed Revolving Loan, and (B) the Revolving Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 5.02 have been satisfied. If the Administrative Borrower gives a Notice of Borrowing requesting a Revolving Loan and the Revolving Agent elects not to fund such Revolving Loan on behalf of the Revolving Loan Lenders, then promptly after receipt of the Notice of Borrowing requesting such Revolving Loan, the Revolving Agent shall notify each Revolving Loan Lender of the specifics of the requested Revolving Loan and that it will not fund the requested Revolving Loan on behalf of the Revolving Loan Lenders. If the Revolving Agent notifies the Revolving Loan Lenders that it will not fund a requested Revolving Loan on behalf of the Revolving Loan Lenders, each Revolving Loan Lender shall make its Pro Rata Share of the Revolving Loan available to the Revolving Agent, in immediately available funds, in the Revolving Agent's Account no later than 3:00 p.m. (New York City time) (provided that the Revolving Agent requests payment from such Revolving Loan Lender not later than 1:00 p.m. (New York City time)) on the date of the proposed Revolving Loan. The Revolving Agent will make the proceeds of such Revolving Loans available to the Borrowers on the day of the proposed Revolving Loan by causing an amount, in immediately available funds, equal to the proceeds of all such Revolving Loans received by the Revolving Agent in the Revolving Agent's Account or the amount funded by the Revolving Agent on behalf of the Revolving Loan Lenders to be deposited in an account designated by the Administrative Borrower.
(d)If the Revolving Agent has notified the Revolving Loan Lenders that the Revolving Agent, on behalf of the Revolving Loan Lenders, will not fund a particular Revolving Loan pursuant to Section 2.02(c)(ii), the Revolving Agent may assume that each such Revolving Loan Lender has made such amount available to the Revolving Agent on such day and the Revolving Agent, in its sole discretion, may, but shall not be obligated to, cause a corresponding amount to be made available to the Borrowers on such day. If the Revolving Agent makes such corresponding amount available to the Borrowers and such corresponding amount is not in fact made available to the Revolving Agent by any such Revolving Loan Lender, the Revolving Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Revolving Agent, at the Federal Funds Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Revolving Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Revolving Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made by the Revolving Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Revolving Agent, the Revolving Agent shall promptly thereafter notify the Administrative Borrower (with a copy of such notice to the Administrative Agent) of such failure and the Borrowers shall immediately pay such corresponding amount to the Revolving Agent for its own account.
(e)Nothing in this Section 2.02(c) shall be deemed to relieve any Revolving Loan Lender from its obligations to fulfill its Revolving Credit Commitment
- 64 -
hereunder or to prejudice any rights that the Agents or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.
1.(i) With respect to all periods for which the Revolving Agent has funded Revolving Loans pursuant to Section 2.02(c), on Friday of each week, or if the applicable Friday is not a Business Day, then on the following Business Day, or such shorter period as the Revolving Agent may from time to time select (any such week or shorter period being herein called a “Settlement Period”), the Revolving Agent shall notify each Revolving Loan Lender (with a copy of such notice to the Administrative Agent) of the unpaid principal amount of the Revolving Loans outstanding as of the last day of each such Settlement Period. In the event that such amount is greater than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period (or, if there has been no preceding Settlement Period, the amount of the Revolving Loans made on the date of such Revolving Loan Lender's initial funding), each Revolving Loan Lender shall promptly (and in any event not later than 2:00 p.m. (New York City time) if the Revolving Agent requests payment from such Lender not later than 12:00 noon (New York City time) on such day) make available to the Revolving Agent its Pro Rata Share of the difference in immediately available funds. In the event that such amount is less than such unpaid principal amount, the Revolving Agent shall promptly pay over to each Revolving Loan Lender its Pro Rata Share of the difference in immediately available funds. In addition, if the Revolving Agent shall so request at any time when a Default or an Event of Default shall have occurred and be continuing, or any other event shall have occurred as a result of which the Revolving Agent shall determine that it is desirable to present claims against the Borrowers for repayment, each Revolving Loan Lender shall promptly remit to the Revolving Agent or, as the case may be, the Revolving Agent shall promptly remit to each Revolving Loan Lender, sufficient funds to adjust the interests of the Revolving Loan Lenders in the then outstanding Revolving Loans to such an extent that, after giving effect to such adjustment, each such Revolving Loan Lender's interest in the then outstanding Revolving Loans will be equal to its Pro Rata Share thereof. The obligations of the Revolving Agent and each Revolving Loan Lender under this Section 2.02(d) shall be absolute and unconditional. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans which have been funded by such Revolving Loan Lender.
(a)In the event that any Revolving Loan Lender fails to make any payment required to be made by it pursuant to Section 2.02(d)(i), the Revolving Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Revolving Agent, at the Federal Funds Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Revolving Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Revolving Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made by the Revolving Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Revolving Agent, the Revolving Agent shall promptly thereafter notify the Administrative Borrower (with a copy of such notice to the Administrative Agent) of such failure and the Borrowers shall immediately pay such corresponding amount to the Revolving Agent for its own account. Nothing in this Section 2.02(d)(ii) shall be deemed to relieve any Revolving Loan Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Agents or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.
C.Repayment of Loans; Evidence of Debt. (a) The outstanding principal of all Revolving Loans shall be due and payable on the Final Maturity Date or, if earlier, on the date on which they are declared due and payable pursuant to the terms of this Agreement.
- 65 -
1.The outstanding unpaid principal amount of the initial Term Loan made on the Effective Date and each additional Term Loan made after the Effective Date shall be repaid in consecutive quarterly installments on the last Business Day of each Fiscal Quarter (each a “Payment Date”), beginning with the Fiscal Quarter ending June 30, 2022. Each such quarterly installment shall be in an aggregate amount equal to the percentage of the aggregate original principal amount of such initial Term Loan and each such additional Term Loan, as applicable, set forth below opposite the applicable Payment Date set forth below:
Payment Date | Quarterly Percentage | ||||
The last Business Day of the Fiscal Quarter ended June 30, 2022 | 3.125% | ||||
The last Business Day of each Fiscal Quarter ended on and after September 30, 2022 | 1.25% |
Notwithstanding the foregoing, the last installment in respect of the Term Loan shall be in the amount necessary to repay in full the unpaid principal amount of the Term Loan. The outstanding unpaid principal amount of the Term Loan, and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (A) the Final Maturity Date and (B) the date on which the Term Loan is declared due and payable pursuant to the terms of Section 9.01 of this Agreement.
2.Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Xxxxxx from time to time hereunder.
3.The Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) hereunder for the account of the Lenders and each Xxxxxx's share thereof.
4.The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that (i) the failure of any Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement and (ii) in the event of any conflict between the entries made in the accounts maintained pursuant to Section 2.03(c) and the accounts maintained pursuant to Section 2.03(d), the accounts maintained pursuant to Section 2.03(d) shall govern and control.
- 66 -
5.Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns in a form substantially similar to Exhibit E and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to such Lender and its registered assigns.
D.Interest.
1.Revolving Loans. Subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan shall be either a Reference Rate Loan or a SOFR Loan. Each Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus the Applicable Margin. Each Revolving Loan that is a SOFR Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Adjusted Term SOFR for the Interest Period in effect for such Loan plus the Applicable Margin.
2.Term Loan. Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan (including, without limitation, the PIK Amount relating thereto) or any portion thereof shall be either a Reference Rate Loan or a SOFR Loan. Each portion of the Term Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the Reference Rate plus the Applicable Margin, and each portion of the Term Loan that is a SOFR Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Loan until repaid, at a rate per annum equal to the Adjusted Term SOFR for the Interest Period in effect for the Term Loan (or such portion thereof) plus the Applicable Margin; provided that (i) all interest accruing on the Term Loan during the period from December 24, 2019 through and including March 31, 2021 shall be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan, (ii) all interest accruing on the Term Loan during the period from April 1, 2021 through June 30, 2021 at a rate per annum of up to 5.00% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, (iii) all interest accruing on the Term Loan during the period from July 1, 2021 through December 31, 2021 at a rate per annum of up to 4.00% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, (iv) all interest accruing on the Term Loan during the period from September 30, 2021 through March 31, 2022 shall be paid by capitalizing such interest at a rate per annum equal to (A) for each portion of the Term Loan that is a Reference Rate Loan, the Reference Rate plus the Applicable Margin and (B) for each portion of the Term Loan that is a SOFR Loan, the Adjusted Term SOFR plus the Applicable Margin, and, in each case, adding such capitalized interest to the then outstanding principal amount of the Term Loan, and (v) after receipt of the SPAC Prepayment Amount, all interest accruing on the Term Loan after the SPAC Effective Date at a rate per annum of up to 3.50% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, which election, in the case of each of the foregoing clauses (ii) through (v), (A) shall be automatically deemed made on the Effective Date for each interest payment date occurring in the Fiscal Year December 31, 2021 and (B) shall thereafter be made in writing by the Administrative Borrower not less than 5 Business Days prior to (1) if a SOFR Loan, the commencement of the relevant Interest Period or (2) if a Reference Rate Loan, the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries. Any interest to be so capitalized
- 67 -
pursuant to this clause (b) shall be capitalized on (x) if a SOFR Loan, the last day of the applicable Interest Period with respect thereto, or (y) if a Reference Rate Loan, the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries and, in each case, added to the then outstanding principal amount of the Term Loan and, thereafter, shall bear interest as provided hereunder as if it had originally been part of the outstanding principal of the Term Loan.
3.Default Interest. To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the occurrence and during the continuance of an Event of Default, the principal (including the PIK Amount) of, and all accrued and unpaid interest on, all Loans, fees, indemnities or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate.
4.Interest Payment. Interest (other than the PIK Amount, which shall be capitalized in accordance with Section 2.04(b)) on each Loan shall be payable (i) in the case of a Reference Rate Loan, quarterly, in arrears, on the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries, commencing on the last Business Day of the Fiscal Quarter of the Parent and its Subsidiaries in which such Loan is made, (ii) in the case of a SOFR Loan, on the last day of each Interest Period applicable to such Loan and (iii) in the case of each Loan, at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Revolving Agent to, and the Revolving Agent may, from time to time until the Revolving Credit Commitment Termination Date, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder.
5.General. All interest and fees shall be computed on the basis of a year of 360 days for the actual number of days, including the first day but excluding the last day, elapsed.
E.Reduction of Commitments; Prepayment of Loans.
1.Reduction of Commitments.
(a)Revolving Credit Commitments. The Total Revolving Credit Commitment shall terminate on the Revolving Credit Commitment Termination Date. The Borrowers may reduce the Total Revolving Credit Commitment to an amount (which may be zero) not less than the greater of (A) $5,000,000 and (B) the sum of (1) the aggregate unpaid principal amount of all Revolving Loans then outstanding, and (2) the aggregate principal amount of all Revolving Loans not yet made as to which a Notice of Borrowing has been given by the Administrative Borrower under Section 2.02. Each such reduction shall be (x) in an amount which is an integral multiple of $1,000,000 (or by the full amount of the Total Revolving Credit Commitment in effect immediately prior to such reduction if such amount at that time is less than $1,000,000), (y) made by providing not less than 5 Business Days' prior written notice to the Revolving Agent (with a copy of such notice to the Administrative Agent), and (z) irrevocable. Once reduced, the Total Revolving Credit Commitment may not be increased. Each such reduction of the Total Revolving Credit Commitment shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance with its Pro Rata Share thereof.
(b)Term Loan. The Total Term Loan Commitment shall be reduced and terminated from time to time in accordance with Section 2.01(b)(ii). The Borrowers may, at any time and from time to time, upon at least 5 Business Days' prior written notice to the Administrative Agent, voluntarily reduce or terminate the remaining Total Term Loan Commitment.
- 68 -
2.Optional Prepayment.
(a)Revolving Loans. The Borrowers may, at any time and from time to time, prepay the principal of any Revolving Loan, in whole or in part by providing written notice to the Revolving Agent (with a copy of such notice to the Administrative Agent) by 12:00 noon (New York City time) one Business Day prior to the date of such prepayment.
(b)Term Loan. The Borrowers may, at any time and from time to time, upon at least 5 Business Days' prior written notice to the Administrative Agent, prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to this Section 2.05(b)(ii) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid (which for the avoidance of doubt, shall not include any PIK Amount) and (B) the Applicable Premium payable in connection with such prepayment of the Term Loan. Each such prepayment shall be applied against the remaining installments of principal due on the Term Loan in the inverse order of maturity and pro rata to the Term Loan A and Term Loan B. Notwithstanding the foregoing, the Borrowers shall be required to provide prior written notice to the Administrative Agent of any prepayment of the Term Loan to be made with proceeds of the SPAC Restructuring (other than the SPAC Prepayment Amount) (such notice, the “SPAC Prepayment Notice”) and such SPAC Prepayment Notice shall be (1) irrevocable and (2) delivered to the Administrative Agent at least one (1) day (but not less than 24 hours) prior to the proposed SPAC Effective Date.
(c)Termination of Agreement. The Borrowers may, upon at least 30 days prior written notice to the Agents, terminate this Agreement by paying to the Administrative Agent, in cash, the Obligations (including, without limitation, the Applicable Premium, if any), in full; provided that such notice may provide that it is conditioned upon the consummation of other financing or the consummation of a sale of Equity Interests, in which case, such notice may be revoked or extended by the Borrowers if any such condition is not satisfied prior to the date of termination of this Agreement in such notice. If the Administrative Borrower has sent a notice of termination pursuant to this Section 2.05(b)(iii) which is not conditional, then the Lenders' obligations to extend credit hereunder shall terminate and the Borrowers shall be obligated to repay the Obligations (including, without limitation, the Applicable Premium), in full.
3.Mandatory Prepayment.
(a)Contemporaneously with the delivery to the Agents and the Lenders of audited annual financial statements pursuant to Section 7.01(a)(iii), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ended December 31, 2022, or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii), on the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii), the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to (A) if the Leverage Ratio of the Parent and its Subsidiaries as of the last day of such Fiscal Year is greater than or equal to 2.75 to 1.00, 75% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year or (B) if the Leverage Ratio of the Parent and its Subsidiaries as of the last day of such Fiscal Year is less than 2.75 to 1.00, 50% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year.
(b)Immediately upon any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of Permitted Disposition) by any Loan Party or its Subsidiaries, the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with
- 69 -
such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed for all such Dispositions $1,500,000 in any Fiscal Year. Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii)
(c)Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness, including, for the avoidance of doubt, CARES Act Indebtedness, CEBA Indebtedness and/or HASCAP Indebtedness), or upon an Equity Issuance (other than any Excluded Equity Issuance and the Amendment No. 2 Equity Contribution), the Borrowers shall prepay the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(d)Upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith to the extent that (A) the aggregate amount of Extraordinary Receipts under clauses (c) (other than with respect to business interruption insurance) or (e) of the definition thereof received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed $1,500,000 in any Fiscal Year and (B) the aggregate amount of Extraordinary Receipts under clauses (a), (b), (c) (but only with respect to business interruption insurance), (d), (f) or (g) of the definition thereof received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed $5,000,000 over the term of this Agreement.
(e)Immediately upon receipt by the Borrowers of the proceeds of any (A) Permitted Cure Equity pursuant to Section 9.02 or (B) Capex Equity Contribution pursuant to Section 7.03(a), the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of such proceeds.
(f)Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Subsidiaries in connection with a Disposition or the receipt of Extraordinary Receipts consisting of insurance proceeds or condemnation awards that would otherwise be required to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), as the case may be, up to $2,500,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions and Extraordinary Receipts shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used to replace, repair or restore properties or assets (other than current assets) used in such Person's business, provided that, (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Administrative Borrower delivers a certificate to the Agents within 5 days after such Disposition or loss, destruction or taking, as the case may be, stating that such Net Cash Proceeds shall be used to replace, repair or restore properties or assets used in such Person's business within a period specified in such certificate not to exceed 180 days after the date of receipt of such Net Cash Proceeds (which certificate shall set forth estimates of the Net Cash Proceeds to be so expended), (C) such Net Cash Proceeds are deposited in an account subject to a Control Agreement, and (D) upon the earlier of (1) the expiration of the period specified in the relevant certificate furnished to the Agents pursuant to clause (B) above or (2) the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv) as applicable.
- 70 -
(g)The Administrative Borrower shall provide written notice to the Agents by 12:00 noon (New York City time) one Business Day prior to each mandatory prepayment hereunder.
4.Application of Payments. Each prepayment pursuant to subsections (c)(i), (c)(ii), (c)(iii), (c)(iv) and (c)(v) above shall be applied as follows: (i) first, to the Term Loans, until paid in full and, (ii) second, to the Revolving Loans (with a corresponding permanent reduction in the Revolving Credit Commitments), until paid in full. Each such prepayment of the Term Loans in clause (i) above shall be applied against the remaining installments of principal of the Term Loans in the inverse order of maturity and on a pro rata basis to Term Loan A and Term Loan B. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, if the Administrative Agent has elected, or has been directed by the Required Lenders, to apply payments in respect of any Obligations in accordance with Section 4.03(b), prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b).
5.Interest and Fees. Any prepayment made pursuant to this Section 2.05 shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) the Applicable Premium payable in connection with such prepayment of the Term Loan, and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero at a time when the Total Revolving Credit Commitment has been terminated, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.
6.Cumulative Prepayments. Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.
F.Fees.
1.Closing Fee.
(a)On or prior to the Effective Date, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, a nonrefundable closing fee (the “Closing Fee”) equal to $2,200,000, which shall be deemed fully earned when paid.
(b)On the Amendment No. 9 Effective Date, the Borrowers shall pay to the Administrative Agent, for the account of the Amendment No. 9 Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable closing fee (the “Amendment No. 9 Fee”) equal to $300,000, which shall be deemed fully earned when paid.
2.Unused Revolving Credit Commitment Fee. From and after the Effective Date and until the Revolving Credit Commitment Termination Date, the Borrowers shall pay to the Revolving Agent, for the account of the Revolving Loan Lenders in accordance with their Pro Rata Shares, quarterly in arrears on the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries commencing December 31, 2019, a non-refundable unused commitment fee (the “Unused Revolving Credit Commitment Fee”), which shall accrue at the rate per annum of 1.00% on the excess, if any, of the Total Revolving Credit Commitment over the sum of the average principal amount of all Revolving Loans outstanding from time to time during the preceding Fiscal Quarter and which shall be deemed fully earned when paid. Notwithstanding the foregoing, the Unused Revolving Commitment Fee for each of the Fiscal Quarters ending March 31, 2020, June 30, 2020 and September 30, 2020 will be deferred and paid on December 31, 2020.
- 71 -
3.Administration Fee. From and after the Effective Date and until the Termination Date, the Borrowers shall pay to the Agents, for the account of the Agents, a non-refundable administration fee (the “Administration Fee”) equal to (i) prior to the Amendment No. 9 Effective Date, $75,000 each Fiscal Year and (ii) from and after the Amendment No. 9 Effective Date, $105,000 each Fiscal Year, which shall be deemed fully earned when paid and which shall be payable on the Effective Date (payable ratably based on the number of days remaining in the Fiscal Year in which the Effective Date occurs) and annually in advance thereafter on the first Business Day of each Fiscal Year commencing on January 3, 2023.
4.Applicable Premium.
(a)Upon the occurrence of an Applicable Premium Trigger Event, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares (solely in respect of the Term Loans), the Applicable Premium.
(b)Any Applicable Premium payable in accordance with this Section 2.06(d) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event and the Loan Parties agree that it is reasonable under the circumstances currently existing. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(c)The Loan Parties expressly agree that: (A) the Applicable Premium is reasonable and is the product of an arm's length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Applicable Premium; (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (E) their agreement to pay the Applicable Premium is a material inducement to Lenders to provide the Commitments and make the Loans, and (F) the Applicable Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Agents and the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such Applicable Premium Trigger Event.
(d)Nothing contained in this Section 2.06(d) shall permit any prepayment of the Loans or reduction of the Commitments not otherwise permitted by the terms of this Agreement or any other Loan Document.
5.Audit and Collateral Monitoring Fees. The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the Agents may visit any or all of the Loan Parties and/or conduct audits, inspections, valuations, appraisals or examinations of any or all of the Loan Parties at any time and from time to time. The Borrowers agree to pay (i) $1,500 per day per examiner plus the examiner's out-of-pocket costs and reasonable expenses incurred in connection with all such visits, audits, inspections, valuations, appraisals or examinations and (ii) the cost of all visits, audits, inspections, valuations, appraisals or examinations conducted by a third party on behalf of the Agents; provided, that so long as no Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to reimburse the Agents for more than one such visit, audit, inspection, valuation, appraisal or examination during any calendar year.
G.SOFR Option.
- 72 -
1.The Administrative Borrower may, at any time and from time to time, so long as no Default or Event of Default has occurred and is continuing, elect to have interest on all or a portion of the Loans be charged at a rate of interest based upon the Adjusted Term SOFR (the “SOFR Option”) by notifying the Administrative Agent in writing prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) in the case of the conversion of a Reference Rate Loan to a SOFR Loan, the commencement of the proposed Interest Period or (iii) in the case of the continuation of a SOFR Loan as a SOFR Loan, the last day of the then current Interest Period (the “SOFR Deadline”). Notice of the Administrative Borrower's election of the SOFR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Administrative Agent of (A) a Notice of Borrowing (in the case of the initial making of a Loan) in accordance with Section 2.02 or (B) a SOFR Notice prior to the SOFR Deadline; provided that, election of the SOFR Option with a 3-month Interest Period shall be automatically deemed made for all Loans on each SOFR Deadline for each Interest Period occurring in the Fiscal Years ending December 31, 2020 and December 31, 2021. Promptly upon its receipt of each such SOFR Notice, the Administrative Agent shall notify each of the Lenders thereof. Each SOFR Notice shall be irrevocable and binding on the Borrowers.
2.Interest on SOFR Loans shall be payable in accordance with Section 2.04(d). On the last day of each applicable Interest Period, unless the Administrative Borrower properly have exercised the SOFR Option with respect thereto, the interest rate applicable to such SOFR Loans automatically shall convert to the rate of interest then applicable to Reference Rate Loans of the same type hereunder. If the Administrative Borrower submits a timely SOFR Notice, but fails to specify an Interest Period, the Administrative Borrower shall be deemed to have elected an Interest Period of one month's duration. At any time that a Default or an Event of Default has occurred and is continuing, the Administrative Borrower no longer shall have the option to request that any portion of the Loans bear interest at the Adjusted Term SOFR and the Administrative Agent shall have the right to convert the interest rate on all outstanding SOFR Loans to the rate of interest then applicable to Reference Rate Loans of the same type hereunder prior to the last day of the then current Interest Period.
3.Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than 5 SOFR Loans in effect at any given time, and (ii) only may exercise the SOFR Option for SOFR Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
4.The Borrowers may prepay SOFR Loans at any time; provided, however, that in the event that SOFR Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any application of payments or proceeds of Collateral in accordance with Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and hold the Agents and the Lenders and their participants harmless against any and all Funding Losses in accordance with Section 2.08.
5.In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Administrative Borrower, the Revolving Agent and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR. Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required match fund any
- 73 -
Obligation as to which interest accrues at Adjusted Term SOFR or the Term SOFR Reference Rate.
6.Subject to clause (g), if, on or prior to the first day of any Interest Period for any SOFR Loan:
(a)the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or
(b)the Required Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans) determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans) have provided notice of such determination to the Administrative Agent,
the Administrative Agent will promptly so notify the Administrative Borrower, the Revolving Agent and each Lender.
Upon notice thereof by the Administrative Agent to the Administrative Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Administrative Borrower to continue SOFR Loans or to convert Reference Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans)) revokes such notice. Upon receipt of such notice, (i) the Administrative Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Administrative Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Reference Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Reference Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Administrative Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.08. Subject to Section 2.07(g), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Reference Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate” until the Administrative Agent revokes such determination.
7.Benchmark Replacement.
(a)Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Administrative Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to the Revolving Agent and all affected Lenders and the Administrative Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark
- 74 -
with a Benchmark Replacement pursuant to this Section 2.07(g)(i) will occur prior to the applicable Benchmark Transition Start Date. No swap agreement shall be deemed to be a “Loan Document” for purposes of this Section 2.07(g).
(b)In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)The Administrative Agent will promptly notify the Administrative Borrower, the Revolving Agent and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Administrative Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.07(g)(iv) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.07(g), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.07(g).
(d)Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)Upon the Administrative Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Administrative Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Administrative Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Reference Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Reference Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Reference Rate.
- 75 -
H.Funding Losses. In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default or any mandatory prepayment required pursuant to Section 2.05(c)), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, then, in any such event, the Borrowers shall compensate each Lender for any loss, cost and expense (“Funding Losses”) attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.08 shall be delivered to the Administrative Borrower and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
I.Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made without deduction or withholding for any and all Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of any Withholding Agent) requires the deduction or withholding of any Taxes from or in respect of any such payment, (i) the applicable Withholding Agent shall make such deduction or withholding, (ii) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased by the amount (an “Additional Amount”) necessary such that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.09) the applicable Recipient receives the amount equal to the sum it would have received had no such deduction or withholding been made.
1.In addition, each Loan Party shall pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes by any Secured Party.
2.The Loan Parties hereby jointly and severally indemnify and agree to hold each Secured Party harmless from and against Indemnified Taxes (including, without limitation, Indemnified Taxes imposed on any amounts payable under this Section 2.09) paid or payable by such Secured Party or required to be withheld or deducted from a payment to such Secured Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Secured Party (with a copy to the Administrative Agent) or by the Administrative Agent on its own behalf or on behalf of another Secured Party shall be conclusive absent manifest error.
3.As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Section 2.09, such Loan Party or the Administrative Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
4.(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the
- 76 -
Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Administrative Borrower or the Administrative Agent as will enable the Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.09(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(f)Without limiting the generality of the foregoing, in the event the Borrowers are U.S. Borrowers,
(i)any Recipient that is a U.S. Person shall deliver to the Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Recipient is exempt from U.S. federal backup withholding tax;
(ii)any Lender that is not a U.S. Person (a “Foreign Lender”) shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)executed copies of IRS Form W-8ECI;
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit 2.09(e)-1 hereto to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Administrative Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or
- 77 -
(4)to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(e)-2 or Exhibit 2.09(e)-3, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(e)-4 on behalf of each such direct and indirect partner;
(iii)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(iv)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent as may be necessary for the Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Xxxxxx's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify each Agent in writing of its legal inability to do so.
5.Each Lender shall severally indemnify each Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified such Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxx's failure to comply with the provisions of Section 12.07(i) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by such Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the applicable Agent shall be conclusive absent manifest error. Each Lender hereby authorizes each Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by such Agent to the Lender from any other source against any amount due to such Agent under this paragraph (e).
- 78 -
6.If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.09 (including by the payment of additional amounts pursuant to this Section 2.09), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.09 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
7.Each Agent agrees to file (or arrange for its administrative services provider to file) IRS Form 1042-S (or similar form as at any relevant time in effect), if applicable, with respect to payments it makes to the Lenders under the Loan Documents.
8.Each party's obligations under this Section 2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
J.Increased Costs and Reduced Return. (a) If any Secured Party shall have reasonably determined that any Change in Law shall (i) subject such Secured Party, or any Person controlling such Secured Party to any tax, duty or other charge with respect to this Agreement or any Loan made by such Secured Party (except for (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) Connection Income Taxes), (ii) impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D)), special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, such Secured Party or any Person controlling such Secured Party or (iii) impose on such Secured Party or any Person controlling such Secured Party any other condition (other than Taxes) regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Secured Party of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by such Secured Party hereunder, then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party such additional amounts as will compensate such Secured Party for such increased costs or reductions in amount.
1.If any Secured Party shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Secured Party or any Person controlling such Secured Party, and such Secured Party determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, such Secured Party's or such other controlling Person's other obligations
- 79 -
hereunder, or (ii) has or would have the effect of reducing the rate of return on such Secured Party's or such other controlling Person's capital to a level below that which such Secured Party or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, or any agreement to make Loans, or such Secured Party's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Secured Party's or such other controlling Person's policies with respect to capital adequacy), then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party from time to time such additional amounts as will compensate such Secured Party for such cost of maintaining such increased capital or such reduction in the rate of return on such Secured Party's or such other controlling Person's capital.
2.All amounts payable under this Section 2.10 shall bear interest from the date that is 10 days after the date of demand by any Secured Party until payment in full to such Secured Party at the Reference Rate. A certificate of such Secured Party claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Secured Party to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Secured Party's reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error.
3.Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 2.10 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
4.The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
K.Changes in Law; Impracticability or Illegality.
1.Adjusted Term SOFR may be adjusted by the Administrative Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of increased costs due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional or increased costs would increase the cost of funding loans bearing interest at Adjusted Term SOFR. In any such event, the affected Lender shall give the Administrative Borrower and the Administrative Agent notice of such a determination and adjustment and the Administrative Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, the Administrative Borrower may, by notice to such affected Lender (i) require such Lender to furnish to the Administrative Borrower a statement setting forth the basis for adjusting such Adjusted Term SOFR and the method for determining the amount of such adjustment, or (ii) repay the SOFR Loans with respect to which such adjustment is made (together with any amounts due under Section 2.09).
- 80 -
2.If any Lender determines that any Requirement of Law applicable to such Lender has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Administrative Borrower (through the Administrative Agent) (an “Illegality Notice”), (a) any obligation of the Lenders to make SOFR Loans, and any right of the Borrowers to continue SOFR Loans or to convert Reference Rate Loans to SOFR Loans, shall be suspended, and (b) the interest rate on which Reference Rate Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate”, in each case until each affected Lender notifies the Administrative Agent and the Administrative Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrowers shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all SOFR Loans to Reference Rate Loans (the interest rate on which Reference Rate Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR Loans to such day, in each case until the Administrative Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.08.
3.The obligations of the Loan Parties under this Section 2.11 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
L.Mitigation Obligations; Replacement of Lenders.
1.If any Lender requires the Borrowers to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10, then such Lender shall (at the request of the Administrative Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to such Section in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
2.If any Lender requires the Borrowers to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above, or if any Lender is a Defaulting Lender, then the Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and the Agents, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
- 81 -
(a)the Borrowers shall have paid to the Agents any assignment fees specified in Section 12.07;
(b)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.08 and Section 2.09) 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);
(c)in the case of any such assignment resulting from payments required to be made pursuant to Section 2.09 or a claim for compensation under Section 2.10, such assignment will result in a reduction in such compensation or payments thereafter; and
(d)such assignment does not conflict with applicable law.
Prior to the effective date of such assignment, the assigning Xxxxxx shall execute and deliver an Assignment and Acceptance, subject only to the conditions set forth above. If the assigning Xxxxxx shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such assignment, the assigning Lender shall be deemed to have executed and delivered such Assignment and Acceptance. Any such assignment shall be made in accordance with the terms of Section 12.07.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply.
M.Incremental Term Loan.
(a)At any time during the period from the Amendment No. 9 Effective Date until the date that is the twelve (12) month anniversary of the Amendment No. 9 Effective Date, at the option of the Borrowers (but subject to the conditions set forth in clause (b) below), the Total Term Loan A Commitments may be increased by an aggregate amount not to exceed $20,000,000 (such increase, the “Incremental Term Loan A Commitments”). The Administrative Agent shall invite each Term Loan A Lender to increase its Term Loan A Commitment (it being understood that no Term Loan A Lender shall be obligated to increase its Term Loan A Commitment) in connection with the proposed Incremental Term Loan A Commitments, and if sufficient Lenders do not agree to increase their Term Loan A Commitments in co